USA > North Carolina > History of North Carolina: The Colonial and Revolutionary Periods 1584 1783, Volume I > Part 22
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Making common cause with the southern members, John- ston prorogued the Assembly to meet in November at Wil- mington, expecting that so many northern members would re- fuse to attend at that season and at such a distance, that the southern members would control the House. In fact, the for- mer had openly declared that, because of the inclemency of the season and the difficulties of travel, they would not attend a winter session at Wilmington. Since they composed a ma-
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jority of the House, they of course expected that no session could be held without them. But in this they reckoned with- out their host, for they could not foresee that Samuel Swann, John Starkey, and other southern leaders, for the sake of a petty sectional advantage and at the behest of a royal gov- ernor, would surrender one of the most cherished principles of the popular party, namely, that no number less than a ma- jority should be considered a quorum of the House of Com- mons. Yet this is just what they did. With only fifteen mem- bers in attendance, out of a total membership of fifty-four, Speaker Swann declared a quorum present and notified the governor that the House was ready for business. The busi- ness of the session was cut and dried. But two bills were con- sidered, one making New Bern the capital and regulating circuit courts, the other reducing the representation of the Albemarle counties 2 from five to two members each. Johnston hastened to dispatch the two acts to England for approval, saying: "I have got a law passed for fixing the seat of Gov- ernment at Newbern, and a tax laid for Public Buildings. There was only one other law passed then, viz., an Act for ascertaining the number of representatives for each County, the inequality of which has been one great source of the Dis- orders of this Colony." Not a word about the revolutionary method by which the two bills were passed through the As- sembly !
But the northern counties were not so reticent. They pro- tested loudly against the trick of which they were the victims, denounced the whole proceedings as a fraud, and solemnly agreed that they would not recognize the validity of the pre- tended acts of the rump Assembly. Accordingly, when the governor issued writs for a new Assembly to meet in Febru- ary, 1747, and directed the northern counties to return but two members each, the people refused obedience and in each county chose five as usual. The House, of course, promptly declared the elections null and void, threw out the returns, and directed that new elections be held. Thereupon the north- ern counties appealed to the king. A long and bitter contro- versy followed. Three issues were presented, viz .: the right of the northern counties to five members each ; the number of representatives necessary to constitute a quorum of the House; and the validity of the act complained of. The gov- ernor, assisted by certain of his councillors, presented the case
2 In March, 1739, Albemarle and Bath counties were abolished and their subdivisions, theretofore known as precincts, became counties.
1
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for the southern counties; Wyriott Ormond and Thomas Barker, prominent attorneys, represented the northern coun- ties. Both sides argued their contentions with skill and abil- ity. The governor eontended that the only basis for the elaims of the northern counties was the Biennial Aet of 1715 which the king had repealed in 1737. The northern eounties, on the other hand, traeed their claim back to the Fundamental Con- stitutions and the unbroken practice of the colony under the Lords Proprietors. By careful searching of the records, by numerous depositions as to what practice had been followed, and by hearing long and tedious arguments, the crown offi- cials sought diligently and impartially to arrive at a correct decision. The main point, i. e., the right of the northern coun- ties to five members each, they deeided in favor of the north- ern counties ; they thought, however, that a majority was not necessary for a quorum, saying that "such a constitution is very extraordinary and liable to great inconvenience"; never- theless, as the aet in question had been "passed by manage- ment, precipitation and surprise," they advised the king to veto it.
Eight years passed between the appeal and the decision, years of confusion, rebellion and almost of anarchy through- out the northern half of the province. The first election held under the act of 1746 had given the governor an Assembly amenable to his will and he determined to hold it together as long as possible. Eleeted in 1747, it held thirteen sessions, and was not dissolved until 1754, after Johnston's death. During these years the northern counties refused to send rep- resentatives to the Assembly. They denied the constitutional authority of an Assembly in which they were not allowed their full representation. They held its acts to be null and void. They would not use the eurrency emitted by its author- ity. They refused to pay taxes. They declined to serve as jurors in the General Court organized under the aet of 1746, or to submit to its judgments. In a word, as Bishop Spang- enberg wrote in 1752, throughout the northern counties there existed "a perfeet anarchy. As a result, erimes are of fre- quent oceurrenee, such as murder [and] robbery. But the criminals cannot be brought to justice. The citizens do not appear as jurors, and if court is held to decide sueh criminal matters no one is present. If any one is imprisoned the prison is broken open and no justice administered. In short, most matters are deeided by blows. Still the county courts are held regularly and what belongs to their jurisdiction receives
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customary attention." The last statement throws a flood of light on this curious situation. The people would not submit to the jurisdiction of the General Court because it was held under authority of an act passed by the rump Assembly of November, 1746, nevertheless they maintained their county courts in full vigor and cheerfully submitted to their decrees because they were held under the long established laws of the province.
Governor Johnston, dying in 1752, did not live to see the end of the controversy which his "management" had fast- ened on the province. After a brief interval, during which first Nathaniel Rice and then Matthew Rowan, as presidents of the Council, administered the government, Arthur Dobbs was appointed governor. Dobbs was the head of an ancient family in Carrickfergus, Ireland. He had had a varied and not undistinguished career, having served as high sheriff of County Antrim, as representative of Carrickfergus in Parlia- ment, and as surveyor-general of Ireland. But he was best known for his interest in Arctic explorations; he had even made an attempt to discover the Northwest Passage, and had written treatises on the subject. His interest in North Car- olina began with the purchase of the colony by the Crown. As early as 1733 he was a member of a syndicate which pur- chased 60,000 acres in New Hanover precinct upon which the company settled a colony of Irish Protestants. He also had other landed interests in North Carolina. It was doubtless this connection with the colony that suggested his appoint- ment as governor.
It was an unfortunate selection. Without the energy and ability of Burrington, lacking Johnston's force of character and political shrewdness, Dobbs entertained more exaggerated ideas of the prerogative of the Crown and less tolerance for the constitutional claims of the Assembly than either. At sixty-five years of age, he was too old to adapt himself to the strange conditions of a new country and too infirm to grapple successfully with the difficult problems of colonial administra- tion. During the decade covered by his administration, these difficulties increased as year by year his capacity to cope witli them diminished. Says Saunders in his admirable analysis of Dobbs' character, "his mental faculties, probably never very great, weakened and finally gave way under the strain * * * and in December, 1762, a stroke of palsy, that de- prived him of the use of his lower limbs, all the winter, put an end to all hope, for the time, at least, of his future usefulness.
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He rallied, however, and if he did, indeed, escape the drivel- ling imbecility of old age, he committed its supreme folly by marrying a very young girl. Complimented in 1755 for his vigor and intelligence, in 1762 he was told by the lords of the Board of Trade that his dispatches were so very incorrect, vague and incoherent that it was almost impossible to dis- cover his meaning, and that as far as they could be under- stood, they contained little more than repetitions of proposi- tions he had made to them before, and upon which he had received their sentiments fully and clearly expressed."3 To which it must be added that as his mental faculties decreased, his irritability, his dictatorialness, and his egotism increased, rendering co-operation with him impossible. Such was the man which the British colonial system of the eighteenth century selected to administer the public affairs of a sensitive and highly excitable people at a time when the fate of the British Empire hung upon the vigor, intelligence and harmony with which all its parts co-operated in its defense.
Dobbs arrived at a conjuncture favorable for a successful administration. The people were tired of internal strife. The French and Indian War was then in progress and imperial interests for the first time in the history of the colony ab- sorbed the attention of the people. Dobbs, too, was the bearer of the decisions of the Crown in the issues raised by Governor Johnston and these decisions were on the whole favorable to the colony. Furthermore he brought instructions to dissolve the old rump Assembly elected in 1747, which half the colony regarded as illegal, and to call a new Assembly in which rep- resentation should be distributed as it had been prior to 1746. This Assembly met in New Bern, December 12, 1754. It was the first Assembly since June, 1746, in which all the counties were represented. Evidence of the seriousness of the division in the popular party was seen in the contest for the speaker- ship. For the first time in fourteen years a candidate for the speakership appeared against Samuel Swann, who had long been the leader of the popular party and was now the leader of the southern faction. After a sharp contest, he was de- feated by John Campbell, leader of the northern faction. The morning after the election, Dobbs wrote to the Board of Trade, "Although there may be some little sparring betwixt the parties, yet both have assured me it shall have no effect upon public affairs or make my administration uneasy."
3 Prefatory Notes to Colonial Records of North Carolina, Vol. V, p. viii.
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In spite of his sanguine anticipations, Dobbs soon found himself involved in controversies with the Assembly over a greater variety of issues than any of his predecessors. Some of the less important of these concerned the right of the As- sembly to elect the public treasurer, to name an agent to rep- resent the colony before the various boards in England, to appoint a public printer, and to fix the fees of provincial offi- cials. On these issues the Board of Trade generally sustained the Assembly even to the point of rebuking the governor for the persistence of his opposition. When Dobbs, for instance, rejected an aid bill because it contained a clause naming an agent in England, in whose choice he claimed a right to be consulted, the Board of Trade wrote to him that it was none of his business "either in point of Right or Propriety to inter- fere in the nomination of an Agent so far as regards the Choice of the person" for "in this respect the Representatives of the people are and ought to be free to chuse whom they think proper to act," and that while the method of appoint- ment in this particular case was irregular, "yet when we consider the necessity there was of some supply to answer the exigency of the Service in the present calamitous State of his Majesty's Southern Provinces, we cannot but think it was too trivial an Objection to have been admitted as a reason for rejecting that Supply." But on the more important issues, such as the number of members necessary to constitute a quorum of the House of Commons, the right of the Assembly to determine the qualifications and tenure of judges, and its right to control the expenditure of public funds, the Board of Trade fully sustained the governor.
The quorum controversy Dobbs inherited from the Jolin- ston administration. The popular party, contending for the principle of the Biennial Act of 1715, that "the quorum of the House of Burgesses for voting and passing of Bills shall not be less than one full half of the House," based its conten- tion upon "the Constitution and constant usage and practice" of the colony. Such a constitution, on the other hand, the crown officials, calling to mind the practice of the British Parliament in which 40 members out of a total of 556 were a quorum, considered "very extraordinary and liable to great inconvenience," so they instructed Dobbs to consider fifteen members a quorum of the Assembly. This instruction the Assembly resolutely refused to obey. In October, 1760, in April, 1762, in December, 1763, and in February, 1764, the members declined to obey the governor's commands that they
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form a House with less than a majority, "denying His Maj- esty's right of constituting fifteen to be a quorum." The governor blustered and scolded and the Board of Trade de- nounced the Assembly's course as "an indecent opposition to the just authority of the Crown," but to no purpose; the As- sembly refused to yield and the issue remained to vex the administration of Dobbs' latest successor under the Crown. It was not finally settled until the people took the government into their own hands in 1776.
In the quorum controversy the Assembly held a stronger legal position than it did in the controversy over the qualifica- tions and tenure of judges, though perhaps not a more just one. It was conceded that the appointment of a chief justice, with a tenure during the king's pleasure, was a prerogative of the Crown. For this great office attorneys were usually sent out from England whose personal character and legal learning did not always measure up to the dignity and re- sponsibility of their position. Owing their appointment and their tenure to the will of the governor they were perhaps too often amenable to executive influence. To curtail this in- fluence as much as possible, as well as to provide for the increasing needs of the growing colony, the Assembly passed an act which provided for associate, or assistant justices upon whom, in the absence or disability of the chief justice, it con- ferred full jurisdiction, at the same time so arranging the circuits that the chief justice could not possibly attend more than half the courts. These associate justices were to be appointed by the governor, but the Assembly was careful to limit his choice by fixing such qualifications as practically to exclude all non-resident attorneys, and to secure their inde- pendence by giving them a tenure during good behavior.
These "new and unprecedented" features, crown officials considered violations of the king's prerogative, and upon their advice the king vetoed the act and instructed Dobbs not to consent to any such provisions in the future. Thus again did Prerogative challenge Privilege, undo what the Assembly had declared to be necessary for the "ease" of the people and the "due and regular administration of justice," and ride roughshod over the personal ambitions of numerous aspiring attorneys. Here then were all the elements for a pretty quarrel. It flared up at once bringing with it as Dobbs said, "a stagnation of Justice." The controversy reached its crisis in 1760. Called into special session to vote an aid to the king for war purposes, the Assembly obstinately refused
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even to consider an aid bill unless the governor would con- sent to its court bill. The contest raged with great bitterness. The governor lashed the members fiercely and the Assembly retorted by holding a secret session in which it brought an arraignment against Dobbs "without an equal until that brought against King George at Philadelphia by the United Colonies on the 4th of July, 1776." + It declared that "by the injudicious and partial appointment of Justices not quali- fied for such trust and the abrupt removal of Others whose Characters have been liable to no objection, Magistracy has fallen into Contempt and Courts have lost their Influence and dignity." These explosions, however, cleared the atmosphere and led the way to a compromise. In return for a supply, the governor agreed to sign the court bill provided a clause was inserted limiting its duration to two years unless ap- proved by the king. Needless to say this approval was never given, and the only reward Dobbs received for his pains was a stinging rebuke from his official superiors. The Assembly fared better for the incident showed it a way to accomplish its purpose by adopting the simple expedient of passing court laws containing the desired provisions and limited in their operation for two years. This practice was followed for more than a decade.
Most of the controversies which have been discussed, es- pecially those over the election of the public treasurer, the appointment of the colonial agent, and the qualifications and tenure of judges, were involved in the great controversy over finances, and were, in fact, subsidiary to it; that is to say, the Assembly used its power over the public purse to force from the executive concessions on these other questions. The French and Indian War which continued through most of Dobbs' administration brought unprecedented demands for money and gave to financial affairs greater importance than they had ever had before. No man was more British in his enmity to the French, or more Protestant in his hostility to their religion, than Dobbs, and he made the wringing of money out of the province for the prosecution of the war the para- mount object of his administration. The Assembly met his demands as liberally as it thought the circumstances of the colony justified, but it could not satisfy the governor. Greater demands urged in impolitic language brought on numerous
4 Saunders: Prefatory Notes to Colonial Records of North Caro- lina, Vol. VI, p. xxi.
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sharp controversies over the prerogatives of the Crown and the privileges of the Assembly in fiscal affairs.
These controversies involved two classes of funds. First, there was North Carolina's share of the appropriation made by the British Parliament to reimburse the colonies for their large expenditures in prosecuting the war; and, second, money appropriated directly by the General Assembly. Dobbs claimed the right to dispose of the first by executive order, and at times drew upon it for the equipment and pay of troops. His right to do this the Assembly disputed, and its position was sustained by the Board of Trade. Much more significant was the controversy over appropriations. The governor complained of the habit of the Assembly of tacking onto supply bills extraneons matters, such as the appointment of a colonial agent, and of using its control over such bills to force concessions in other matters, as it did in the court law controversy. But these phases of the dispute involved no principle; the chief issue was the claim of the Assembly to the sole right to frame supply bills. In 1754, the Council having proposed an amendment to an appropriation bill, the Assembly promptly rejected it and unanimously resolved "that the Councill in taking upon them to make several mate- rial Alterations to the said Bill whereby the manner of raising as well as Application of the Aid thereby granted to his Majesty is directed in a different Manner than by that said Bill proposed have acted contrary to Custom and Usage of Parliament and that the same tends to Infringe the Right and Liberties of the Assembly who have always enjoyed un- interrupted the Privilege of Framing and modelling all Bills by Virtue of which Money has been Levied on the Subject for an Aid for his Majesty." Having made good this princi- ple, the Assembly voted money for support of the war with a liberality which even Dobbs acknowledged. After 1758, however, the governor made a total failure in his efforts to direct the Assembly. More zealous than judicious, he allowed himself to become involved in a silly quarrel over what the Board of Trade called a "trivial" matter, in which he imag- ined the king's prerogative was affected, and rather than yield a little where resistance could do no good, he foolishly threw away the supplies which a burdened people reluctantly offered. Quarrel followed quarrel; the sessions were con- sumed with quarrels. The Assembly refused to frame sup- ply bills at the governor's dictation, and in an outburst of wrath, he wrote to the Board of Trade that the members were
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"as obstinate as mules" and appealed to the king to strength- en his authority for "supporting his Majesty's prerogative" in the colony.
In these controversies with Dobbs, one's sympathies are naturally with the Assembly. Nevertheless when one con- siders the threat which the vast designs of France held out against the very existence of the British Empire in America, the danger which hung over the colonists themselves from the hostility of the savage and relentless allies of the French, and the urgent necessity for unity and harmony in all the English- speaking colonies, one cannot altogether escape the feeling that the Board of Trade was justified in rebuking the As- sembly for its "unfortunate and ill-timed disputes * * at a time when the united efforts of all his Majesty's subjects are so essentially necessary to their own security and to the promoting the general interest of the Community."
The Assembly's justification must be sought in its con- viction that it was fighting the battles of constitutional and representative government. Its appeal was constantly to the "Constitution" and the "usage and practice" of the col- ony. By "Constitution" it meant the Carolina charter and the practices which had grown up under it. Among its provisions was a guarantee that the people of Carolina should "freely and quietly have, possess and enjoy" as fully as if they were residents of England, "all liberties, franchises, and privileges, of this our kingdom, * without the molestation, vexation, trouble, or grievance, of us, our heirs, and successors; any act, statute, ordinance, or provision, to the contrary notwithstanding." Furthermore, the charter contained certain provisions which, though not among those "liberties, franchises and privileges" which the people en- joyed as Englishmen, were yet equally as binding upon both ruler and subject. In the quorum controversy, for instance, the Assembly based its contention on that clause of the char- ter which provided for the making of laws by and with the advice and consent of the freemen, "or the greater part of them, or their delegates or deputies," and asserted that "the King had no right to lessen the Quorum by his Instructions." These chartered rights, the Assembly held, had not been af- fected by the transfer of the colony to the Crown, and could be neither abridged nor abrogated without the consent of the people. As late as 1761, Dobbs wrote that the Assembly con- tended that the charter "still subsisted" and that it bound the king as well as the people. The Assembly felt, there-
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fore, that it was fighting the battles of representative gov- ernment, which the royal governors had set themselves to destroy. Dobbs summed up the situation when he wrote, "The Assembly think themselves entitled to all the Privileges of a British House of Commons and therefore ought not to submit to His Majesty's honorable Privy Council further than the Commons do in England, or submit to His Majesty's in- structions to His Governor and Council here," and appealed to the king to strengthen his hands that he might more effec- tually "oppose and suppress a republican spirit of Independ- ency rising in this Colony."
CHAPTER XIV
INTER-COLONIAL AND IMPERIAL RELATIONS
The change from a proprietary to a crown colony swept North Carolina more fully than ever into the current of inter- colonial and imperial affairs. Its administration now passed under the immediate supervision of a committee of the Privy Council officially entitled the Lords Commissioners for Trade and Plantations, but better known as the Board of Trade. To enable this board, to which was committed the general super- vision of colonial affairs, to carry out its task, power was given it to recommend to the king in Council suitable persons for governor, councillors, judges and other colonial officials; to draft instructions to governors, and to correspond with them ; to examine laws passed by colonial assemblies and to recommend to the king in Council those which ought to be approved and those which ought to be vetoed; to hear com- plaints of oppression and mal-administration in the colonies and to report its findings to the king in Council; to require accountings of public funds voted by colonial assemblies ; to "execute and perform all other things necessary or proper for answering our royal intentions in the premises;" and, finally, in order to make its power effective, to send for per- sons and papers, and to examine persons under oath. Al- though it had no executive power of its own, nevertheless its advice was sought and generally adopted by the Privy Coun- cil which had ultimate authority in colonial affairs. The Board of Trade, writes Andrews, "developed fairly definite ideas as to what the British policy towards the colonies should be; it maintained in the Plantation Office a permanent staff of secretaries and clerks who became the guardians of the traditions of the office; and upheld, during periods of political manipulation and frequent change, a more or less fixed colo- nial program." 1
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