USA > North Carolina > History of North Carolina, V I pt 2 > Part 5
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"JAMES HUNTER.
"P.S .- Your friends are all well and desire to be remembered to you."
John Harvey speaker
A new Assembly. the members of which had been elected Jan., 1773 in the spring, was prorogued to December, and then to January ISth following, but the attendance being smail, the session did not begin until the 25th. Because of Speaker Caswell's action in relation to the resolve forbidding the C. R., IX,
*C. R., IX. 877. Act of indemnity disallowed by home govern- ment.
447
406
MARTIN'S ADMINISTR.ITION, 1771-75
1773
collection of the one shilling tax. Earl Hillsborough had directed Governor Martin not to assent to Caswell's election as speaker, should the house again elect him. But now John Harvey was once more in his seat, and at Caswell's instance he was unanimously chosen speaker, Caswell himself having fixed his eye on the southern treasuryship. The session opened with every appearance of good will between the governor and the Assembly, and at once the house addressed itself to the passage of a large number of necessary bills. During the session the robes for the speakers and the maces having arrived. the treasurers were directed to pro- vide suitable robes for the doorkeepers and mace bearers ; and there was some disposition to have triennial assemblies, conformably to the law in England.
C. R., IX. 211, 563, 573
The governor communicated to the Assembly the cost of running the line from the Catawba nation to the mountains, but that body refused to pay it, saying that the line was very objectionable ; that it was run in the interest of South Carolina, and that this province would bear no part of the expense. It was declared that a million acres of land had been taken from the province, on which were located many settlers : that a large part of Tryon County had been thrown into South Carolina, and the sheriff of Tryon County had to be relieved because of the arrears of the taxes which he had not collected. Notwithstanding the indignant remon - strance of the last house. the governor now communicated that any respectful petition would be considered by the king, and the house directed its Committee of Correspon- dence to require the agent to urge another line on the king's attention.
Act of oblivion defeated
C. R., IX, 433, 547
There were echoes of the regulation movement. Many were the applications for allowances because of the expense suffered in connection with Tryon's march. Among those allowed by the house was the payment of £37 to William Few for the destruction of his wheat and rye field by Tryon's horses and cattle. An act of oblivion being pro- posed, among those excepted from its operation in the coun- cil were James Hunter. Samuel Devinny, and Ninian Bell
407
WESTERN EXPANSION
1773 -
Hamilton. In the house these names were omitted from the excepted list. and the bill fell because the council would not concur with the house in granting pardon to Hunter.
Edmund Fanning had left the province and returned to Fanning New York. His attorneys had been directed to institute suit against those who had destroyed his house and prop- erty. But Governor Martin, fearing that this proceeding would revive animosities and produce some disturbance, prevailed on Fanning to abandon his actions at law and rely C. R . 11. on the justice of the Assembly. His claim was for £1,500. 548, 561 The amount was moderate, but the house refused to pay it, saying that it could not appropriate public funds for private purposes ; and although some discontent might arise from his suits, it would be local, while the inhabitants of the whole province would object to having the public money used that way.
This being the session for the election of treasurers. c. R., IX, Montfort was re-elected for the northern district, but by 1054 means which Ashe's friends hotly denounced as unjust, he was defeated by Caswell.
Changes at the west
The development of the western section led to efforts to furnish the inhabitants of the interior needed facilities for transportation At the little village of Charlotte, Queen's Charlotte College had been established, although the act was dis- allowed because it vested in the trustees the right of appoint- ing the master. Now a bill was passed to make it the county seat of Mecklenburg, but this, too, was rejected, as it contained provisions relating to other subjects of legis- lation. But in view of its growing importance, a highway was ordered to be built from Charlotte to Bladen.
On the Cape Fear, the hamlet of Cross Creek found a Campbell- rival in Campbellton, less than a mile distant. Campbellton ton had become the mart of the northwestern counties, and a road was directed to be constructed from it to Dan River ; also, in the superior court bill, it was proposed to discontinue the court at Hillsboro and attach Orange and Granville to the Halifax district. while Chatham and other counties were grouped in a new circuit. the court to be held at Campbellton.
.
408
MARTIN'S ADMINISTRATION, 1771-75
1773 February
The court bill
The Assembly, in committee of the whole, directed that a new court bill be drawn, providing for both superior and inferior courts; for the retention by the chief justice of the power to appoint the superior court clerks ; and prohibiting the clerk of the pleas from selling or disposing of any county clerkship for any gratuity or reward whatsoever, and mak- ing any clerk who should give any gratuity or reward for his clerkship incapable of holding the office.
C. R., IX, 477
The sale of clerkships
S. R., XXIII, 872
The attachment clause
C. R., IX, 558
The bills defeated
C. R., IX, 600
The council sought to amend this bill in various par- ticulars. While agreeing that there should be no sale of a clerkship, it proposed to allow the clerk of the pleas to reserve a proportion of the fees to himself ; and especially, because of the king's commands, it desired an amendment that in all cases of attachment, where the defendant resided in Europe, the proceedings should be stayed one year. The house refused to concur, and the council finally passed the bill, but with a clause suspending its operation until it should be approved by the king. The old court laws, how- ever, were about to expire, and some immediate provision for maintaining a judicial system was imperatively neces- sary. Under this stress, two other bills were at once intro- duced. with the view of continuing the former laws in force for six months, and until the next session of the assembly. In the council both of these bills were so amended as to exempt from attachment the landed property of persons who were not residents of the province, and requiring twelve months' notice to the debtor. This was an innova- tion in the law and usage which had ever prevailed in the province, and as it would be attended with great incon- venience, often resulting in the defeat of justice, the house refused to concur. The action of the council was, however, in conformity with the governor's instructions, and in the contest much heat was evolved. Finally the council, con- tent with defeating the superior court bill, passed that continuing the inferior courts: but the governor was not so complacent, and he refused his assent even to that measure. Thus neither bill became a law, while the general act. passed earlier in the session, could have no operation until the king had given his assent. And so it was that
400
THE COURT BILL FAILS
the contingency had arrived upon which on the adjourn- ment of the Assembly the entire judicial system of the province was to fall. With hot animosity, the house, appeal- ing to the judgment of mankind. passed a resolution that there should be published in the gazettes copies of the gov- ernor's instructions and of the various communications between the two houses, so that their conduct could be fully understood.
On the day this action was taken, March 6th, the gov- ernor having rejected the inferior court bill and sixteen others of less importance, prorogued the Assembly until the 9th, hoping by this act of discipline to bring the members into a frame of mind more compliant with his wishes. But the members had equal resolution. and, upon the proroga- tion, most of them returned to their homes; and although fifteen. with the speaker. appeared on the 9th, and the governor and council urged that, under the royal instruc- tion given twenty years earlier, fifteen constituted a quorum, Speaker Harvey communicated to the governor that the members present would not make a house unless there should be a majority in attendance; and that he not only had no expectation of the arrival of other members, but those then at New Bern were preparing to depart. The C. R., IX, house had refused to obey the governor. Nothing was left 595 but its immediate dissolution, and writs were at once issued for the election of new members, the Assembly to be held on May Ist.
Prerogative courts
Without any laws providing for courts or juries, or direct- ing how jurors should be drawn, with at least the ordinary number of criminals in jail, and a necessity existing to enforce the criminal laws for the preservation of peace and order, Governor Martin now bethought himself of his authority, under the king's prerogative, to establish courts C. R., 1X. of over and terminer, and on March 16th appointed Maurice 607 Moore and Richard Caswell commissioners, together with the chief justice, to hold such courts. During the summer they were held in several of the counties under the order of the governor.
No courts C. P ... 1X, 581
March, 1773
The Assembly firm C. R., 1X, 599
410
MARTIN'S ADMINISTRATION, 1771-75
1773
Governor Martin having the previous year visited the western counties. now spent some time in the Albemarle section, and likewise in the counties bordering on South Carolina: and in his report of these journeys he spoke favorably of the fertility of the soil and the prosperous condition of the people.
Quincy's visit
The policy of the ministry and of Parliament in regard to the colonies had been a source of continual irritation, especially with the more commercial communities of the north ; and in their plans for resistance the Massachusetts leaders deemed it expedient to have the united support of all the inhabitants of America. To this end, early in 1773. Josiah Quincy passed through North Carolina, seeking to establish a plan of continental correspondence, which the Virginia Assembly had recommended. At Wilmington he dined with about twenty persons at Mr. William Hcoper's, and spent the night with Cornelius Harnett, whom he char- acterized as "the Samuel Wams of North Carolina." He mentioned in his diary : "Robert Howe. Harnett and myself made the social triumvirate of the evening. The plan of continental correspondence, highly relished. much wished for and resolved upon as proper to be pursued.". He was sur- prised to find that "the present state of North Carolina is really curious; there are but five provincial laws in force through the colony, and no courts at all in being."
Earl Granville being now desirous of having his terri- tory cared for, offered to make Governor Martin his agent. and the governor submitted the matter to Earl Hillsborough and received permission to undertake that employment in addition to his other duties. Granville's land office had been closed for several years.
During the summer the governor received instructions from the king disallowing the court law passed at the last session, but allowing attachments in a modified form. He had determined not to convene the Assembly until he had received these instructions, and prorogued it from time to time until the last of November, when the new house met, again electing Harvey as speaker.
C. R., IX. 610
Granville's land office opened
411
COMMITTEES OF CORRESPONDENCE
Colonial affairs
1773
Immediately on its assembling, Speaker Harvey laid C. R., IX, before the house resolutions received from other colonies, Nov., 1775 and a committee, composed of Johnston, Howe, and Har- nett, was appointed to prepare appropriate answers. Among these resolutions were those of the Virginia Assembly of March 12th proposing a Committee of Correspondence, in C R, IX, 737,74> which the house concurred, and it appointed eight members as a standing Committee of Correspondence, with directions to obtain the most early and authentic intelligence of the ministry's plans that related to the colonies; and, partic- ularly were they required to report on a court of inquiry lately held in Rhode Island, with powers to transmit persons accused of offences to places beyond seas for trial. This action-the appointment of committees of correspondence- was the first step in the path that led to the union of the colonies. It was significant of a purpose of co-operation, and as time passed and event followed event, the bands of union were forged and the colonies became welded together in an indissoluble confederacy. 741
The house informed Governor Martin that in its opinion he could not erect courts of oyer and terminer without the concurrence of the legislature, and that it would make no provision for defraying the expenses of the courts he had instituted. Samuel Johnston was the leading spirit in the C. R., X, Assembly. He was pronounced against courts of prerog- Ict ative and the house was unanimous in its action. Neces- sarily the system fell and the courts ceased. New bills were brought in for the establishment of courts, and for pardon and oblivion for the Regulators, and to discontinue the poll tax of one shilling. The council. however. objected to the first, insisting that it should be drawn conformably to the king's instructions, to which the house would not agree ; nor did it act on the other measures.
The act of oblivion again fails
On December 21st the governor sent a verbal message requiring the immediate attendance of the house at his palace. Before complying. the house hastily passed a resolution appointing a committee, composed of the speaker and seven
Prerogative courts overthrown
412
MARTIN'S ADMINISTRATION, 1771-75
1774 The aid of Tryon asked C. R., IX. 787
other members, to prepare an address to the king on the subject of the court law, particularly relative to attachments. and to address Governor Tryon requesting him to convey the same to his Majesty, and "support our earnest solicita- tions with his interest and influence, and that he will accept of this important trust as testimony of the great affection this colony bears him, and the entire confidence they repose in him." Governor Martin having found the temper of the Assembly so firm in its opposition to his measures, prorogued it until March Ist, and the session closed without the passage of a single act.
C. R., IX, 800
When the governor learned of the address to Governor Tryon, of New York, his mortification was unbounded, his pride having received a severe blow, which he considered extremely undeserved ; but he suppressed his anger and still pursued a persuasive policy.
No courts in the province C. R., IX, March, 1774
C. R., IX, 930
The governor's prerogative courts having suddenly fallen, there were in March, when the Assembly met again, neither criminal nor civil courts in existence. The governor made another earnest appeal for conciliation. and it was pro- posed as a temporary measure of relief that there should be three acts passed, one establishing courts of justice, one relating to foreign attachments, and one relating to the fee bill of 1748. On these measures, for the first time, the yeas and nays were entered on the house journals. The house refused to assent by large majorities, all the leading mem- bers voting in the negative.
S. R., XXIII, 931
Temporary court law
The house having again passed a court bill, which the governor felt it his duty to reject, temporary acts were passed to establish courts of over and terminer and inferior courts, to last for one year, and then until the next session of the Assembly, to which he gave a reluctant assent. The friction between the Assembly and the governor was indeed pronounced. for the assemblymen were immovable, and not- withstanding Governor Martin was conciliatory to the last degree, yet he was bound by his positive instructions and could not meet the views of the popular leaders. On March 24th he prorogued the body until May 25th. But before its adjournment the house again resolved that the one shilling tax should not be collected. This was more
413
TEMPORARY COURTS
than the spirit of the governor could brook, and now giving rein to his wrath and indignation. he immediately issued his C. R., IX, proclamation dissolving the Assembly with marks of his 946 censure and disapprobation. The original act having been The Assembly dissolved passed by the three several constituents composing the legis- lative body, the governor held that the house "had assumed the dangerous power of dispensing with the positive laws of the country, and that it was a political enormity to abrogate a solemn and important law by its single veto." The session, Courts of however, was not without avail, for provision was made for oyer and terminer establishing inferior courts and criminal courts : of the latter, Alexander Martin and Francis Nash were the judges of the Salisbury and Hillsboro districts, respectively. So much at least had been accomplished.
But this very important act was defective. It was cer- tainly badly drawn. Governor Martin assented to it with great reluctance, and always spoke of it contemptuously. Under his instructions he could not assent to such a general court law as the Assembly insisted on, but because of the deplorable situation, in the absence of any courts of criminal jurisdiction, he gave his assert to this temporary act, which had been hastily passed by the Assembly. It authorized the governor to commission the chief justice to hold courts of oyer and terminer and general jail delivery, and to appoint two other persons resident in each district to hold the courts of their districts in the absence of the chief justice, but by inadvertence the powers conferred on these judges were not those probably intended, the draftsmen being unskilled. Chief Justice Howard left North Carolina for the summer. and James Hasell was appointed chief justice in his stead. The summer terms were to be held in June and July and the winter terms in December and January. When the court convened at Wilmington, at the close of July, Maurice Moore raised objections because of the defects in the act and in the commission of the judge. Moore had been on the bench in Governor Tryon's time, and had been appointed by Gov- ernor Martin one of the judges of his prerogative courts, which the Assembly had repudiated as being illegal and unconstitutional. The destruction by the Assembly of the court of which he was a judge on the score of illegality and
1774
S. R. XXIII, 945
C. R., IX, 1060
Moore attacks the courts, July, 1774
414
MARTIN'S ADMINISTRATION, 1771-75
1774 McRee', Iredell, I, 201
unconstitutionality seems to have inflamed the deposed jurist. who had held his honors by the appointment of the governor, and now with zest he made his legal exceptions to the constitution of the Assembly's court, "very indecently reflecting upon the legislature, happy in the weakness of the judge." Because of his strictures, the court adjourned.
C. R., X, I
Nevertheless, these courts continued to be held, at least in some if not all the districts, until the summer of 1775.
Harvey urges a convention
April, 1774
The condition of the province, although in the absence of courts there were fewer disorders than might have been anticipated, was. in 1774, a fruitful source of grave alarm to thoughtful citizens. Something, they said, must be done to save the country from anarchy. Biggleston, the gov- ernor's secretary, mentioned to Speaker Harvey that the governor did not intend to convene another Assembly until he saw some chance of a better one than the last. Promptly Harvey replied that the people then would convene one them- selves. On the night of April 4, 1774. a week after the dissolution of the Assembly. Harvey and Jolinston passed the night with Colonel Buncombe, and Harvey was "in a very violent mood, and declared he was for assembling a convention independent of the governor, and urged upon us to co-operate with him." He declared that he would lead the way and "issue hand-bills under his own name, and that the Committee of Correspondence ought to go to work at once." Such a proceeding was not unknown. It had been resorted to once, years before, in Massachusetts, but now it was a revolutionary movement and was a bold departure. Harvey had already spoken of it to Willie Jones, who prom- ised to exert himself in its favor, and now Jolinston wrote to Hooper on the subject, and asked him to speak to Harnett and Ashe and other leaders on the Cape Fear.
C. R., 1X, 968
Continental affairs
But not only were the affairs of the province then acute, continental matters also were agitating the people. The agreement of the colonies not to give their asseut to any law taxing America had led to the disuse of taxed tea, large quantities of which lay stored in the English ware-
415
TIIE T.IX ON TEA
houses of the East India Company. To counteract this, Parliament allowed the export of teas from England with- out the former export duty, so that the teas, even after paying the American tax, could be sold at a cheaper price. With the hope of speedy sales, the East India Company 'l'ea imported shipped cargoes to New York, Philadelphia. Charleston and Boston. Those for the two former ports were returned to London. At Charleston the tea was unloaded, but stowed away in cellars unsoldi. At Boston, where a considerable illicit trade in tea was carried on by Hancock and other merchants, which they did not wish interfered with, the gov- ernment insisted that the tea should be landed and sold. To December prevent this. a number of the inhabitants, disguised as Indians, on the night of December 18th boarded the ships, broke open the chests and emptied the tea into the harbor. Information of this proceeding caused great excitement in England. American affairs engrossed the attention of Par- liament. Four acts were passed. By the first the port of Boston was closed. to take effect on June 4th, the custom house being transferred to Salem. By the second the charter Action in England of Massachusetts was abrogated and town meetings, except for elections, declared unlawful. By the third all officers of the Crown, in case of indictment, were to be sent to Eng- land for trial. The fourth related to the quartering of C. R., IX. soldiers on the colonies. While these measures, aimed di- 1000 rectly at the old colonies, excited indignation, a fifth, respect- ing the government of the new province of Quebec, occasioned even greater apprehension. In that, every limi- tation of the constitution was disregarded. The legislative Quebec Act power was vested in a council appointed by the Crown. Roman Catholicism was established as the state religion. Roman Catholics were eligible to office. There was to be no writ of habeas corpus. The French civil law, without jury trials, was ordained: and the bounds of the province were extended south to the Ohio and west to the Mississippi, hedging in the northern colonies. If charters could be abro- gated. government by general assemblies abolished, Protes- tantism supplanted by Catholicism and the writ of habeas corpus ignored. America owed her liberties only to the sufferance of her masters.
1774
1-73 The Boston Tea Party
Boston closed, June 4. 1774
416
MARTIN'S ADMINISTRATION, 1771-75
1774
C. R., IX, 303
Arrival of Highlanders
C. R., IX, 1020
Under the changing condition there was to be a conflict between the colonies and the mother country was apparent, and in view of it the king regarded with apprehension the wonderful growth of the colonies, and sought to check the removal of his subjects from Great Britain to his American dominions. Thus, in 1772, after James McDonald and his associates of the Isle of Skye, proposing to settle in North Carolina, had petitioned for an allotment of forty thousand acres of land, the request was refused on the ground that too many British subjects were removing to the colonies. Mc- Donald was the head of that large and influential connection of which Flora McDonald was a member-that admirable woman whose picturesque career has given her a unique dis- tinction among her sex. Notwithstanding this refusal, the McDonalds did not relinquish their purpose but continued their preparations to join the stream of Scotchmen who were migrating to the Cape Fear. In the spring of 1774 three hundred families came from the Highlands : and although the king in February of that year gave instructions which virtually closed his land offices and withdrew his land from entry, yet in the following winter some eight hundred other Scotchimen disembarked at Wilmington. Among them were the McDonalds. Flora and her husband. Allan, after a brief sojourn at Cross Creek, resided temporarily at Cameron Hill, near Barbecue Church, some twenty miles to the north- ward of Campbellton, and then located in Anson County .*
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