USA > North Carolina > The history of North Carolina from the earliest period, Volume II > Part 21
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An act was passed, for the encouragement of the manufacture of pot and pearl ashes, by a bounty of eight shillings on every hundred weight of the former, and fifteen of the latter; and a town was established on the south side of the north-west branch of Cape Fear river, in the county of Bladen, which was called Elizabethtown.
On the sixth of March, the governor prorogued the legislature for two days : at the expiration of that short period, it appeared, that so many of the members of the house of assembly hal returned home, that there did not remain a majority to constitute a house; those who re- mained, refusing to proceed to business, till a majority could be procured ; the governor, being informed of this, sent a message to the speaker, informing him, that, according to the king's instructions, fifteen members were a quorum, and desired that the speaker might form a house with that number ; the speaker replied, that the members in town were of opinion, that it would be in- consistent with their duty to their constituents, to legis- late, unless a majority of the members of the house were in their seats. The governor issued his procla- mation, dissolving the assembly.
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The province received a considerable accession to its population ; three hundred families arrived at Wilming- ton, from Scotland ; they went up to the vicinity of Cross creek, and settled near the place occupied by those of their countrymen who had adhered to the pretender, and had left home about a quarter of a century before.
The ordinary courts of justice being now shut, the governor issued commissions of oyer and terminer, for the dispensation of justice, in criminal cases: in civil ones, no remedy could be devised.
In the month of June, the governor received, and soon after, communicated by proclamation, the king's instructions, restraining the governors of the American provinces and plantations, from granting any warrant of survey, or passing any patent for lands, without his special direction, except in favor of the officers, non- commissioned officers and soldiers entitled thereto, un- der the king's proclamation of the 7th of October, 1763, allowing persons, whose titles were not perfected, to withdraw their entries, receiving back the money paid, or wait and retain their right of priority.
In the fall, accounts reached the province, that the court bill had received the king's disallowance; and the governor was informed, that provision might be allowed by law, for attachments in cases, where the cause of action arose within the province: due proof being made, before the writs issued, in judicial as well as in original attachments, that the debtor had absconded, to avoid the payment of the debt, and that the ordinary process of law could not be served. The limitation of the juris- diction of the superior, and the extension of that of the inferior courts, were deemed totally inadmissible. He was authorized to allow the jurisdiction of the inferior
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courts, to the amount of twenty pounds, with an appeal, in cases of the value of five pounds or more, where the titles of land and the rights of the crown, were not drawn into question.
The legislative body was convened, and met at New- bern; on the 4th of December. After informing it of the fate of the court bill, thegovernor apprized them of the principles on which they might expect his assent to a new bill. He pressed upon them, the expediency of making it permanent, and allowing honorable salaries to the judges. He said he was authorized to state, that the rules which were insisted on, in regard to attachments, were those by which this kind of process was regulated, in the commercial cities of England, and other parts of Europe. He recommended, that proper compensation might be provided for the services of the officers of jus- tice, in attending the courts of oyer and terminer, which the absence of a court law bad imperiously called for; and reminded them, that it still remained with them, to render effectual the king's gracious intentions, towards the people, concerned in the late insurrection.
The house of assembly, in their answer, bewailed, as a circumstance, which added pungency to the distresses of the people, that there was so little expectation of relief from the interposition of government.
They added, that, loyal in their principles and prac- tice, and zealously attached to the constitutional powers over them, they had been ready, on all occasions, to tes- tify their obedience to every salutary measure, which the king, through his governor, had been pleased to recom- mend to them; and ruled by the same sovereign, and equally entitled to the blessings of the British constitu- tion, with the rest of their fellow subjects, they claimed
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a security for their properties, essential to their com- mercial interest, and uniformly enjoyed by the rest of the inhabitants of the other British provinces on the continent.
They observed, the idea of foreign attachments was inseparable from a trading people, and under the former happy constitution of the courts of the province, it gave credit to its inhabitants and secured to them the confi- · dence of their neighbors, and the alteration, which was proposed, could not be considered as an adequate reme .. dy for the mischiefs, which it was the purpose of their process to obviate, and such as they could not, in duty to themselves and their constituents, adopt.
They said, these sentiments were freely expressed, from an eminent desire to expedite the business of the session, and to prevent the delays which might arise from reserve.
They asserted, that the power of issuing commissions of oyer and terminer and general jail delivery, delega- ted by the king to his governor, could not be exercised without the aid of the legislature of the province. Ca- lamitous as the circumstances of a people might be, from the interruption both of criminal and civil juris- diction, the house judged the misery of such a situa- tion vanished in comparison with a mode of redress, exercised by courts unconstitutionally formed, and it was a blessed particularity of the British code, that civil and criminal jurisdiction had its foundation in the laws of the land, and was regulated by principles as fixed as those of the constitution.
They concluded by declaring their unwillingness to make provision for defraying the expenses, attending a measure which they could not approve.
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The speaker laid before the house a letter from the speaker of the house of burgessess of the province of Virginia, enclosing a copy of the resolutions of that house, on the 12th of March last, with a request that a committee might be appointed to communicate from time to time with a committee by them, then appointed; also letters from the speakers of the lower houses, in sey- eral provinces, expressing their approbation of, and concurrence with, the resolves. Whereupon the house came to a resolution, that the vigilance, displayed by the house of burgesses of the province of Virginia, in at- tending to every encroachment upon the rights and lib- erties of America, and the wisdom and vigor with which they had always opposed such encroachments were worthy the imitation and merited the gratitude of all their sister colonies, and in no instance more particular- ly, than in the proposed measure of appointing commit- tees of correspondence, by which communication and harmony will be established among them, that they will be at all times ready to exert their earnest efforts and strenuous endeavors to preserve and defend their rights, of late systematically invaded.
John Harvey, the speaker, Robert Howe, Cornelius Harnett, William Hooper, Richard Caswell, Edward Vail, John Ashe, Joseph Hewes, and Samuel Johnston, were appointed a standing committee of correspondence and enquiry. They were instructed to obtain the earliest and most authentic intelligence of all such acts and reso- lutions of the parliament, or proceedings of administra- tion, as might relate to the colonists and to maintain a communication with the other provinces: They were further instructed, without delay, to inform themselves particularly of the principles and authority, on which N. CARO. II. 39
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was constituted the court of enquiry, said to have been of late held in the province of Rhode Island, with power to transport persons, accused of offences committed in America, to places beyond the seas to be tried.
The speaker was desired to transmit a copy of these resolutions, with a respectful answer, to the speaker of the house of burgesses of the province of Virginia, and a circular letter of thanks to the speakers of the several houses of assembly, who had so spiritedly adopted the · patriotic resolutions and measures of the house of bur- gesses of the province of Virginia, for their obliging communications to the house.
The house took in consideration the acts of 1748 and 1754, imposing a poll a tax and duty for the redemp- tion of the paper currency then emitted, came to a resolution, that the laws had had their effect, and the tax and duty ought to cease; they directed a bill to be brought for this purpose.
The house refused to admit Henry Irwin, who was elected as a member from the town of Tarborough, to which a charter, authorizing the election of a member, had lately been granted by the governor. The refusal was grounded on the principle, that the town did not contain sixty families, as required by the act of 1715, and had never before been represented.
The governor, in answer to the address of the house, said it was impossible for him to express the concern he felt, in receiving from one of the branches of the legisla- ture of the province, professing to be dutiful and loyal subjects, an address, which he wished not to think, in- decently arraigning the justice of his sovereign and his government; especially while, with the most friendly
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beneficence, all the blessings of the British constitution were held out to them, their wishes indulged, in regard to the mode of proceeding against debtors, which they lament to have so much at heart, as far as could be done, without violence to their sacred and venerable fabric.
He observed. that the inconsistency of the proceed- ings by attachment, which formerly obtained in the pro- vince, their tendency to destroy commercial credit and confidence, and their obvious repugnancy to the par- ticular statutes which were frumed for their preser- vation, upon the most liberal principles of equity and universal justice, might be presumed to be the grounds of the restrictions, proposed by government; restrictions which he could take upon himself to affirm, were never designed, ungenerously to distinguish the province from its neighbors, but founded on the essential policy of as- similating the constitution of the colonies, to that of the mother country, and supported by the well known and generally received maxim, that the conveniency of par- ticular members should yield to the general interest of the state.
He said he had seen, with real concern, intemperate resolves on the journal of the house, one of which, he seemed to think, had an apparent tendency to sap the foundation of the constitution, by cancelling that assur- ance of protection, the first great bond of the subject's allegiance. He added, that, if the doctrine they had first broached, that the aid of the legislature of the pro- vince was necessary to any legal administration of jus- tice, could be received, it would follow of consequence, that a branch of it, declining to adopt any system, could unbinge the state, and dissolve all those solemn ties,
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which, according to the British constitution, or form of government, happyly and wisely gifted, reciprocally bound the sovereign and the subject in each other's mu- tual interest.
He observed, he was perfectly satisfied of the legality of the measures he had pursued for the public good, which had been, immemorially, recommended and never before authorized. He rejoiced in their salutary effects, and was willing to submit their expediency to their can- dor, when they should reflect , that, at the forced and pre- cipitate conclusion of the last session, the province was left, by the legislature, destitute of any establishment for the distribution of justice: naked, defenceless and ex- posed to every injury; happily for the province, then consigned to rapine and disorder, there resided in the prerogative, a power to shield the subject from the hand of violence. Its protection had been sought and im- plored, and many parts of the province bore testimony to its wholesome influence.
The power, which had saved the province from the last state of confusion, with which it was threatened, and which the house had condemned, he said it would be his duty to exercise, as well as every other constitutional authority, entrusted to him by the king, whenever the security or welfare of his subjects would require. He lamented his disappointment, in the hope he had enter- tained, that the house would have thought it an indispen- sable duty, to have made a reasonable compensation to the judges and other ministers of justice, to whom the public are so much indebted; he doubted not, that since the house had determined otherwise, the gentlemen would find the noblest reward, in the consciousness of having greatly served their country. He concluded, by
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beseeching the house calmly to consider the unhappy state of the province, how much its prosperity depend- ed on the present measure, and how much it was incum- bent on them to promote it.
The house prepared a court bill; but the council intro- duced into it such amendments, as were recommend- ed in Great Britain. The house of assembly refused to concur with those alterations, and addressed a message to the council, in which they promised that, ever atten- tive to the faithful discharge of the important trust re- posed in them by the inhabitants of province, the house, in the conduct of every public measure which, dur. ing the session had been submitted to their delibera- tion, had in view the interest and happiness of their con- stituents, as the grand object that ought to govern their determinations; appointed by the people to watch over their rights and privileges, and to guard them from eve- ry encroachment of a public or private nature, it became their duty, and would be their constant endeavor, to pre- serve them secure and inviolable to the present age, and to transmit them, unimpaired, to posterity. They stated, that they had given the court bill the attention it requir- ed, without suffering private interest, passion or preju- dice to intrude upon their enquiries; conscious, from their late melancholy experience, of the unhappy conse- quences, attending the extinguishment of the civil and criminal jurisdiction of the province; dreading the con- tinuance of the calamity, they still submitted to suffer only to avoid a greater misfortune; looking back upon past grievances, without reproaching themselves with being the cause of them, and trusted, that an impartial world would do them the justice to own, they contended for nothing more, than what they had lately enjoyed in
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common with the rest of the king's subjects in North America.
The right of foreign attachment, they said, was exer- cised by their sister colonies. with every latitude requi- site to promote their commercial interest, and to secure the property of the inhabitants; it was a right essential to every system of police and a security, inseparable from traffic. In a province, situated like North Carolina, where trade was the vital principle of the constitution, every circumstance, which placed the people on a more unfavorable footing than their neighbors, was to enrich the latter at the expense of the former, and build the in- crease of the trade of the one on the ruin of that of the other, and the house needed but to look to the colonies, adjoining them, to discover the invidious distinction, and to find cause to regret, that, with equal merit, they had been less the favorites of government.
They expressed themselves fully sensible in the ap- plication to the king, that the act, passed at the last ses- sion, for establishing courts of justice, reserving to the province, in its due extent, the right of attachment, had failed to obtain the king's concurrence; they lamented the ill success of their endeavors, but still flattered them- selves, that their sovereign was not inexorable and that he would still lend an ear to the just complaints of his faithful subjects. To despair from obtaining relief from the grievances they were now laboring under, would be to impeach the justice of the British government, and to distrust the virtues of their king and father: and to sit patiently down, in an humble acquiescence, under the denial of a security by attachment, would be to render themselves unworthy of his royal interposition, and an implied resignation of the rights of subjects, and a vio- lation of the duty they owed him, as the royal protector. of them.
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They manifested their intention of addressing the king on this interesting occasion, and hoped, that the council, equally jealous of the happiness of the province, would heartily concur with them, in a measure that promised the greatest prob bility of being accomplished, although their opinion might differ from that entertained by the house, and should be happy to find, that no passion, no private motive, influenced the consultations of the coun- cil ; but that, with candor and moderation, they pursued the same object, though by different means.
They expressed their confidence, that, in amending the bill, the council had paid a strict attention to the plan proposed by the king to the governor; but the house, the most important branch of the legislature, could not conceive that the attachment clause, as proposed to them, gave a remedy equal to the evils it was intended to obri- ate; the limits, within which an attachment, so re- strained, could only operate, were too confined to render that process beneficial ; the oath prescribed, as a neces- sary previous requisite, rendered it unattainable by every one who was not a stranger to the pleasing influence of truth and honor, and subject to perjury ; to swear that a man absconds toavoid the payment of debt, was to pry into the secret movements of the human heart, and to assume a province, not short of inspiration. The house could not regard the approbation of the council, obligatory upon their assembly, and whatever might ensue from the dif- ference of opinion, it would not be difficult to decide, whether the calamity ought to be charged on the house, contending for a right, which the inhabitants of the pro- vince had for a long time beneficially exercised, or to those who urged an innovation on the constitution, which was to deprive the people of what they had so long enjoyed un impeached.
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The house heartily acknowledged for themselves and their constituents, the necessity of court laws, and with- out anticipating the horrors of a desertion of the inhabit- ants from the province, and the extinction of its name and political existence, they experienced › its present un- happy state, sufficient to induce them to wish for a change, upon legal and constitutional principles.
They observed, that the rules of right and wrong, the limits of the prerogative of the crown and the rights of the people, being well known and ascertained, to ex. ceed either of them was highly unjustifiable : and were the attachment law, as hitherto enjoyed, as a small ad- vantage, compared with that of having court laws, as the council contended it was, the right of the people to it was equal to the right to a more important object ; in the smallest, it was bartering the right of the people for a present convenience; in a greater, it would be the same crime, aggravated only by its circumstances.
They took notice with surprise, that a doctrine, main- tained by a former house of assembly, was now adopted by the council, who disclosed as their opinion, that at- tachments were not known to the common or statute laws of England; they then asked, what did govern- ment tender to the people, when it proposed to the last assembly a mode of attachments agreeable to the laws of England.
They added, they would assert, on all occasions, the necessity of attachments, in the manner the people had lately enjoyed them, in point of expediency as well as of right, and viewed in the scale of relation to the private dealings between subject and subject, it had every ad- vantage that could be reasonably sought, as the trade of the province and its neighbors was principally confined
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to the mutual and private Intercourse mentioned by the council.
With regard to the allowance to the chief justice and attorney general, inserted by the council in the bill, the house answered, it was the undoubted privilege of the people, exercised by their representatives, to make a dis- position of their own moneys; the interposition of the council, with respect to such a disposition, could only be considered as an infringement upon the rights of the people, and an open violation of a fundamental principle of the constitution. Sensible of the importance of the judicial character, and desirous to provide for those whom government might think proper to invest with it, in a manner worthy of the acceptance of men of integrity and eminence, the house said, they conceived the bill for regulating the fees of the chief justice, to be a pro- vision not adapted to the circumstances of the province or to the dignity of the office, and they admitted, that a dependence on the precarious increase or decrease of suits, and the uncertainty which attended the collection of fees on them, created an inconvenience which they felt desirous of obviating : and when the king would be pleased to appoint judges, during good behaviour, they would show the most sincere gratitude for this ad- vantage, both in their profession and practice, by giving a perpetual salary to such officers, as would do honor to the appointment ; in the mean time, they could only think of making such provision for the chief justice, judges and attorney general, as should appear suitable to the circumstances of the province.
They concluded by observing, that the sentiments which ruled the conduct of the house, were submitted as circumstances, which, if they could not induce the V. CARO, II. 10
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council to alter their determination, would, to that body and the world, afford the fullest conviction, that the house were sincere and determined in the measures they had adopted, and from which, in their judgment, they could not depart, without a breach of faith to the public and debasing their legislative character.
Soon after the meeting of the house, on the next day, the secretary brought a message, to require their imme- diate attendance at the palace.
Before they moved, they came to an unanimous reso- lution, that, having considered the king's instructions to the governor, in regard to the process of attachments, and sensible of the deplorable situation to which the country must be reduced, should the proposed restric- tions be continued, they had felt it a duty, which they `owed to themselves and posterity, to use every expedi- ent to prevent it, and, therefore, a committee was ap- pointed to prepare a dutiful address to the king, humbly soliciting him to withdraw an instruction, which, how- ever equitable it might appear to his royal mind, ever attentive to the interests of his people, was so ill adopted to the circumstances of the province and to its commer- cial interest, as to render its operation extremely injuri- ous to both; and to allow his governor to pass a law, which, though suited to the policy of the province, might be so framed, as not to be in any manner injurious to the interest of Great Britain, which his faithful sub- jects of North Carolina thought it their highest duty to promote.
The committee were instructed, in order to convey the address, in the most respectful manner, to the sove- reign, and as the most effectual means of promoting its success, to address William Tryon, the governor of the
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province of New-York, who, happily for the country, had for many years presided over it, and of whose wishes for its welfare they felt the fullest conviction, transmit him the address to the king, and request that he would forward it, support the earnest solicitations of the house with his interest and influence, and accept the in ... portant trust, as a testimony of the great affection the province bore to, and the great confidence they re- posed in him.
When the house arrived at the palace, the governor told them, he had seen with infinite concern, so much time consumed by them and so great an expense incur- red by the public, that he thought their longer attend- ance of no purpose, while they refused to adopt any plan for the due administration of justice, to which he had it in his power to assent ; he observed, he had made them fully acquainted with the restrictions the king had laid upon his conduct, which he was sure had been cal- culated by government, on the most mature considera- tion, for the welfare of the people.
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