USA > North Carolina > The history of North Carolina from the earliest period, Volume II > Part 22
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He desired the members to appeal to and consuit their constituents, to state to them with candor the point for which they contended, and apprising them that the king had been graciously disposed to indulge their wishes, as far as was consistent with the principles of the constitu tion and the interest of all his subjects ; then to ask them, whether they wished to relinquish all the blessings, all the advantages and all the security for their lives and . property, which resulted from the regular execution of the laws of the province, for the contention for a mode of proceeding against debtors, applicable only to a particu- lar case, which was in itself unconstitutional, and which, if it could be obtained, would not avail one person in a
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thousand among them ; he expressed his belief, that, if these facts were fairly represented to the people, they knew too well their own interest, to make such a sacri- fice, or to approve the conduct of the house.
To give the members such an opportunity, he pro- rogued the assembly, to the first day of March.
On meeting the houses, after this short recess, the go- vernor told the assembly, he presumed they had returned fully informed of the sense of their constituents, in re- gard to the difficulties which had arisen concerning the court laws, and which had unhappily rendered the two last sessions abortive ; and he should rejoice to find, that it inclined the representatives of the people to accept the modifications, in regard to the process by attachment, which he had proposed at the last session : but if, con- trary to his wishes, they were still deemed inexpedient, he had that confidence in regard to the house of as- sembly, which induced him to hope, they would no longer make the obtaining of a point, which they knew it was out of his power to yield, the indispensable condi- tion of passing laws for the general administration of justice, in comparison of which, the matter contended for, allowing it all the utility and importance that its warmest advocates ascribed to it, was of very little consequence.
He added, that the law of attachment in every colony, as far as he had been able to inform himself, made no part of the several plans for the adminstration of justice; but was in all a separate and distinct provision; and from its having been for a small number of years woven into temporary court laws in the province, it did not appear to him necessary or expedient, that it should still re- main incorporated in the fundamental constitution, and
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he flattered himself, the house would with him, think it incompatible with every idea of good policy to re- nounce every security of the public peace, credit and happiness, every protection of the lives and property of a whole people, for a circumstance so clearly, so con- fessedly unessential. He added, he was not authorized to propose any thing new on the subject, and drawing the attention of the houses to the late barbarous murder of a store keeper on Cross creek, in the county uf Cum- berland, which appeared to be a prelude only to scenes more flagitious and tragical, if the hand of justice con- tinued longer disarmed, urged them to lose no time in rescuing their country from distress by the re-establish- ment of its courts.
The house replied, they had came to the last session . fully possessed of the sentiments of their constituents; they had however appealed to them again, consulted them and stated, candidly, the point for which they con- tended, and informed them how far the king was dispos- ed to indulge their wishes, disdaining any equivocation or reserve that might leave them ignorant of the con- duct they had pursued or the real motives which had influenced it; and they had the heartfelt satisfaction to inform him, that their constituents had expressed their warmest approbation of the late proceedings of the house and had given them the most positive instructions to persist in those endeavors to obtain the process of foreign attachment, upon the most liberal and ample footing.
Under these circumstances, they added, were they to adopt the modifications, proposed to them, they should violate the sacred trust the people had reposed in them, and disregard the line of duty, marked out for their con- duct; the people were too sensible of the importance of
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preserving that security in trade, which they had hitherto enjoyed, and knew too well their own interest to make a sacrifice of it, or to condemn the conduct of those who had exerted their utmost endeavors to retain it unim- paired.
They admitted, that in many of the colonies, the laws which governed the proceedings by foreign at- tachment, were detached from those which formed the general plan for the distribution of justice; but took notice that they were not, therefore, less secured to the inhabitants, they had equally the sanction of government, and were as permanent in their duration, as the court laws on which they necessarily depenpended; and when these colonies had made provisions for these purposes, by two distinct laws, they possessed the fullest assur- ance, that government would not deny its assent to either.
They assured the governor they would use their best endeavors to lessen the calamities the province suffered from the licenciousness of manner which was the con- sequence of the occlusion of the courts; thinking, that although the best of human institutions had been found unequal to a perfect prevention of crimes against the peace and security of mankind, the most barbarous mur- ders having been sometimes perpetrated under the best regulated police, it was their duty, and they should not fail, to propose the best plan for the administration of justice, in criminal cases, that the circumstances of the delay would admit; which would have been effected at the last session, had it not been for the unexpected and precipitate manner in which he had been pleased to put an end to it.
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The governor observed, that if by telling him, per- haps with great exultation, that the people had approv- ed of the conduct of the house, and instructed their re- presentatives to persist in their endeavors, the idea was intended to be conveyed, that the distressed state of the province was to be continued; because he had it not in his power to comply exactly with all their wishes in re- gard to a mode of proceeding, in some very material points peculiar to the province, which was holden by many to have been unguarded, too open and applicable to fraudulent and oppressive purposes; he could no more enter into the policy of such a plan of conduct, which, in his opinion, was without precedent, than he could help dreading the people would soon feel they made infinitely too dear a sacrifice.
As he has reason to believe opinions prevailed, but too generally, that government designed by the resolutions proposed concerning attachments, to put the inhabitants of the province upon a footing of disadvantage with respect to the rest of the king's subjects; he said it be- came his duty to prevent, as far as possible, the ill ten- dency of so unjust, derogatory, and ungenerous appre- hensions. He therefore pledged most solemnly his honor, that there was nothing more foreign to the royal inten- tion than so injurious a distinction of the province, and that the same benefit of the process of attachment, and every other provision would be allowed in the province, that was held by the people of Great Britain, if the colony did not render itself less deserving of the royal favor. He assured the house, that if he could entertain a belief, that the colony was by any measure to be deprived of a priv- ilege, or advantage, common to the rest of the king's subjects, it would be as hurtful and humiliating to him
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as to them, and he should consider it his duty to labor against it with all becoming zeal; a subject like them, he prized as highly the rights of that condition, and should as impatiently feel any violation of them, against which he owed them his thanks to providence, that there was a sure defence in their governor's justice and sacred regard for the British constitution.
He left it to their calm reflection to decide, how far he was chargeable with precipitation in the conclusion of the last session; he had waited with patience and long- ing desire to see measures taken for the deliverance of the country from the evils that impended it, and when he found, that the house insisted on provisions which his duty forbade him to admit, in the court bills, he had prorouged the general assembly, with the hope that, at a future period, in another temper, and after mature con- sideration, the house would propose a measure more conducive to the happiness of their country. It was with this expectation now that he met them, and he prayed, that he might not be disappointed.
He concluded, that, as a point of duty, he had always made the fairest and fullest representations to the king's servants of the transactions of the province, and he had . fulfilled, unsolicited, every expectation that could be reasonably formed, from his heartfelt expression of regard to the welfare of the province, by collecting with much pains and industry, every light and information within his reach, frou: the laws of attachment in the other provinces, that could serve to illustrate the point insist- ed upon, and by communicating them to the secretary of state.
A bill having passed the house of assembly. for the establishment of superior courts, the council,
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on the third reading of it. proposed that the part of it which related to attachments, and the clause re. pealing the fee bill of 1748, be made the subjects of a separate bill; that the former, should be drawn in such a mode as would please the house; but both should be suspended in their operations till the king's pleasure be known; and that the superior court law be limited in its duration to the period of one year: the house refused to concur, by a majori- ty of thirty-three, with regard to attachment, and thirteen as to the fee bill. This is the first time that the yeas and nays of the members were recorded in the journal of the house.
In a message to the council they complained, that nothing more favorable to the inhabitants of the pro- vince was offered, than what they had rejected at the last session: they said, they could not think of having the important point, for which they had so zealously and so justly contended, in a situation which would not afford the smallest probability of their obtaining it hereafter, on the ample and liberal footing which the trade of the province and its rela- tions with the neighboring provinces required; nei- ther could they abandon the clause, relating to the fee bill, the remuneration contemplated therein be- ing precarious, and ill suited to the dignity of the chief justice, while there was a law providing a handsome salary on its expiration, for which they should not fail liberally to provide.
The council, in reply, urged the house to recon- sider the bill, and expressed their hopes, that, from the wisdon and virtue of the representatives of the people, something might yet rise to stay the ruin N. CARO. II. 41
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of the country. They repeated, that, in regard to attachments, they had claimed and adopted all that was ever enjoyed by the king's subjects in Eng- land, and they apprehended, that every step beyond the limits of the British constitution, would lead to error, fraud and injustice; and, considering the fee bill of 1748, as a solemn grant, from the legisla- ture, of certain fees and perquisites to the chief jus- tice, as a reward for his services, they could not re- concile it to their ideas of equity and justice, to take from that officer this permanent security for his sup- port, without allowing him an equivalent: neverthe- less, as they were willing, as much as possible, to remove every difficulty from the establishment of the courts, and as some sacrifice was to be made, when so much good was to be obtained. they repeated their offer to concur in a separate bill. for the re- peal of the fee act, with a suspending clause.
They objected to the limitation of the jurisdic- tion of the superior court, thinking it reasonable, that all the king's subjects, should be left at liberty to sue in either court; and inconsistent to give, in one and the same bill, to the superior court, all the powers incident to the king's courts at Westminster, and, at the same time, to limit its jurisdiction in a manner, unknown to those courts.
They concluded that, if what they had offered was still thought inadequate to the views of the house, they could go no further, and must leave the rectitude of their intentions to be decided at some future period, when the ardor of the contest should have subsided, and the arguments, offered by the houses, should be impartially weighed.
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The house reconsidered the bill and proposed a proviso, confining the process of attachment to cases in which proof of the defendant absconding, with the intention to avoid the payment of the debt, · so far as his intentions could be judged, from cer- tain circumstances, which should be considered as evidence of such an intention. These circumstan- ces were stated to be, in case of a debtor, residing out, or who had never been in the province, neglect of payment, in other cases, his private removal out of the county, or concealment, in the creditor's be- lief, from the ordinary process, to avoid payment: the process was also confined to cases in which the - cause of action, by the most liberal construction, in favor of the creditor, inhabitant of the province, could possibly be construed, to have arisen within it.
They refused to concur with the council, as to the fee act of 1748, or to strike out the clause, lim- iting the jurisdiction of the superior court, thinking that to leave the creditor at large, to bring his ac- tion for small sums in the superior court, would be distressing and oppressive to poor debtors.
Soon after their message was read in the council. the governor sent to that body a copy of two arti- cles of the king's instruct ons to him, which, he ob- served, were couched in words, so express and plain, and so pointedly forbade his assent to the bill, with the amendments proposed by the house of as- sembly, that he hoped the council would think it in- consistent with their duty to the king, to advise him to offend against his instructions, by passing the bill. In one of these articies. it was said the king would
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not consent that the jurisdiction of his superior court should be limited, in cases of any value what- ever; by the other, the governor was forbidden to re-enact any law to which the king's assent had been before refused, without express leave for that pur- pose, obtained upon a full representation to be made . through one of the principal secretaries of state, of the reason and necessity for passing such a law; nor to assent to any law, repealing any former law of the province, unless there be a clause inserted in it, suspending its operation till the king's pleasure be known.
The council, however, agreed to the amendment as proposed by the house of assembly, and it having taken place, the bill, at length, passed thelast reading.
Before the house went to the palace, to present. for the governor's assent, the superior court bill, a resolution passed, without a dissenting vote, that the house and the council had pursued every useful measure, in their power, to relieve the colony from the distressed situation to which it was reduced, for want of court laws. and, that as well by the bills al- ready passed as by those still under consideration. they had exerted their utmost endeavors to lessen · the present and to prevent the future calamities of the colony.
In rejecting the superior court bill, the governor said, he could never find himself in a situation more affecting to his sensibility, than when his duty to his king opposed his compliance with their wish- es: he had flattered himself, his open, free and candid communication of the royal instructions and
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his repeated assurances, that his conduct must be regulated by the sincere inclination he had con- stantly expressed and manifested, to concur in any consistent plan, not repugnant to those rules, would defend him from the tender feelings that op- pressed his heart. He besought them not to make him any longer mourn over the miseries of the colo- ny, with a heart felt devotion for its service; because he was not allowed to do all they wished; he dis- missed them for further deliberation, with a prayer that the Almighty might guide their councils, to the perfect restoration of the prosperity and the great- est advancement of the glory and happiness of the province.
The house appointed a committee to draw up a loyal and dutiful petition to the king and parliament, praying for the repeal of the statute, preventing bills of credit be- ing issued in the colonies, so far as it regarded the pro- vince, and to allow the passage of a bill to make the de- bentures of the province a legal tende: in all payments, and that in case it was thought improper to grant the request of the house, the king might be pleased to with- draw his instructions to the governor, forbidding to pass any law subjecting the property of debtors, taken in execution, to a valuation, and that the house might be allowed to pass a law similar to the late act on that subject.
The house came to a resolution, that the power of attaching the estates of foreign debtors was founded on principles of the strictest equity, and was a benefit so es- sential to the commercial interest of the colony, that they thought it a duty which they owed to themselves and posterity, to retain it unimpaired, and that their not
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being able to obtain a law, for continuing this power to the inhabitants of the colony. was the source from which its present distresses were principally derived; that the late superior court bill, as it had gone from the house on the third reading, appeared to be well fitted to the policy of the country ; reserving to the colony the power of at- taching the effects of foreigners, and, at the same time, guarding against any possible injury to debtors residing abroad; that an extension of the jurisdiction of inferior courts would be of great benefit to the colony, and that, th. refore, it was the duty of the house, to endeavor to obtain the king's permission to extend it.
The house appointed Thomas Barker and Alexander Elmsley, to carry the above resolves into effect.
Laws were passed, for establishing inferior courts, and a court of oyer and terminer, to be holden semi-annually in each of the judicial districts, by the chief justice, or in case of his inability, by justices, appointed by the go- vernor ; jurisdiction was given to these courts, over the decisions of the inferior courts, by writs of error or ap- peal ; the jurisdiction of the county court, was confined to causes of no less value than five pounds, nor more than twenty pounds ; both acts were to continue in force only till the end of the session of assembly, after one year.
The recurrence to the press, for the supply of a cir- culating medium, in time of need, had been so frequent in the province and the neighboring ones, that the rapa- city of the counterfeiters was excited, and their success had been so great, that they had supplied a considerable portion of the paper in circulation. It was judged ne- cessary, in order to check their progress, to make this kind of imposition a felony, without the benefit of clergy.
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Doubts having arisen, whether slaves, being consi- dered by the laws of the province, as things not as persons, the maliciously killing of a slave was legal murder, an act was accordingly passed, making the first commis- sion of this offence a misdemeanor, punishable by im- prisonment only ; a repetition of the offence was recog- nized as murder, and punishable, as in the case of the destruction of a white man.
A new county was formed out of the northern part of the county of Tyrell and the southern part of that of Halifax, to which the name of Martin was given, in compliment to the chief magistrate.
The house came to a resolution, that the poll tax and duty on liquors, laid in the years 1748 and 1754, for the redemption of the paper currency then emitted, ought long ago to have ceased ; that the house had frequently passed bills to repeal the clause imposing them, and their not being able to obtain a law for that purpose, was a great grievance to the inhabitants of the province and oppression to its trade.
The treasurers were directed to issue orders to the collector not to receive the tax for the year 1774, nor the duty for liquors, imported after the first day of May fol- lowing.
The house declared, they would consider such col- lector, as would receive the tax or duty afterwards, as guilty of a contempt of the resolutions of the house, and as meriting their highest censure, and that they would consider it as a duty, incumbent on them, to indemnify any person who might incur any damage, by acting in obedience to this order, in this respect; and that the public faith stood pledged to make good any deficiency,
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should any appear, on the final settlement of the money collected, in virtue of the tax and duty.
In giving his assent to the bills, for the establishment of courts of oyer and terminer and inferior courts, the governor lamented, that no better system was offered for the dispensation of justice, than the establishment of county courts, the limited jurisdiction of which reached not cases of greater value than twenty pounds, leaving the people without relief in more important cases, a dis- tinction quite irreconcileable to the impartiality of justice.
He said, that the measures which had been taken, to render ineffectual the powers he derived from the king, for the protection of his subjects in the province, and the pendency of the bill, for erecting courts for the trial of criminal matters, were reasons of the greatest weight with him, for giving his-assent to a plan, so in- adequate to the due administration of justice, so in- competent to the security of the public revenue, the col- lection of which was left to depend on the integrity of officers, which had appeared to him so inconsistent with every principle of good policy. Next to this con- sideration, he wished to assure them, he was willing to concur with the house, as far as possible, in the relief of the distresses of the province; and on the one hand, he well knew example to be of greater force than precept, so, on the other, he rested satisfied, that a short use of the expedients adopted, would convince the houses of their inefficacy, as well as of the integrity of his inten- tions and the rectitude of his conduct : after all, he was but too sensible, his assent to those bills, of a nature so unusual, new and extraordinary, would need all the apology he should be able to make, to his royal master.
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He lamented the bad state in which the militia of the province was left, and observed, that the information lately received from the superintendant of Indian affairs, relative to the designs of the Indians, left him, at least, a doubt concerning them, and urged the propriety of the interposition of government, to prevent their outrages on certain of its people, settled in the Indian territory, in vengeance for whose encroachments, it was to be feared, the Indians might extend their violence against the innocent and unguarded inhabitants on the frontiers ; and, as the prolongation of the session, for a day or two, would be far less inconvenient and expensive, than a new session, he pressed them to retire and consider, on proper means for the defence of the province.
A militia bill, accordingly, passed both houses and, on the following day, received the governor's assent. This was the last bill, to which the sanction of a gover- nor was asked, in North Carolina.
On the 25th of March. the assembly was prorogu- ed, and four days after was dissolved by procla- mation; this measure was confessedly grounded on the assumption of a power unconstitutional, repug- nant to the laws and derogatory of the honor and good faith of the province, by attempting to abro- gate an act of the general assembly, upon which the public credit essentially depended; and. about one month after, the governor, by proclamation, called on all sheriffs and collectors to levy the poll tax and duty on liquors, notwithstanding the directions of the assembly to the contrary.
In the month of June, public notice was given, that the king, by his instructions to the governor, of the 9th of February, had established new orders and N. CARO. II. 42
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