USA > North Carolina > The history of North Carolina from the earliest period, Volume II > Part 8
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On reading this last message, the upper house reject- ed the bill absolutely.
An attempt was made in the lower house to pass a bill for an emission of paper money, but the governor communicated to them an article of his instructions, which required him to withhold his assent from any bill for the emission of paper money, unless it contained a clause, that neither the bills proposed to be emitted, nor those hitherto issued, should be a legal tender.
An aid was granted to the king for the subsistence of the troops and militia now in the pay of the province ; it was directed to be paid out of the fund, heretofore appro- priated for the purchase of glebes and the establishment of schools, the king not having signified his pleasure on that appropriation.
Parts of the counties of North Hampton and Chowan were erected into a separate county, to which the name of Hereford was given.
The province rapidly increased in population, and al- though its prosperity was considerably checked by the great exertions which were required from it for the sup- port of the war ; yet, as it was exempt from the ravages of the enemy within its own limits, except on its west- ern border, it extended its agriculture and increased its trade. The culture of tobacco had been successfully at-
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tended to in the middle counties, and inspection and ware houses for that commodity were now established on the river Neuse and its branches.
The commerce of the ports on Neuse and Pamplico, having more to apprehend from the difficult navigation of those rivers, than from any immediate attack from the enemy, against which it was protected by a kind of natu- ral fortification, the powder and lead duty, hitherto col- lected in kind, was directed to be received in money, and the proceeds of it applied to the erection of beacons and the stak-age of the channels of those streams. A similar provision was soon after made for the improve- ment of the navigation from Howard's bay to Bear in- let, in the county of Onslow. Extensive new roads were lald out in the interior part of the province, and at- tention paid to the erection and improvement of the public buildings in the counties.
A tract of land, in the county of Orange, one of the westermost, had been laid off by an individual, W. Churton, on Enoe, one of the branches of Neuse river, on which a number of houses had been built. The healthiness of the spot and its convenient situation for an inland trade, induced the legislature to give to the establishment, the saction of its authority. It was call- ed Childsburg, in honor of Thomas Childs, the attorney general of the province, a gentleman of considerable ability and influence. The name was afterwards altered to Hillsborough, either from the hilliness of the ground, or in compliment to Wells, earl of Hillsborough, the secretary of state for America.
A bill passed both houses for the appointment of an agent, to solicit the affairs of the province in England: the governor withheld his assent from it.
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On the 9th of January, governor Dobbs dissolved the assembly, complaining, in a speech of which a copy was refused to the speaker of the lower house, of their back- wardness in framing an acceptable court system, and laws to. compel sheriff's to account for public moneys, andassigning as one of the causes of the dissolution, the long time the assembly had existed; nearly six years.
Governor Lyttleton, of South Carolina, on the first account of the irruptions of the Cherokees, on the bor- ders of the southern provinces, had embodied a con- siderable portion of the militia of his province, and de- termined on marching into the Indian towns and chas- tising the savages. While he was making his prepara- tions for that purpose, thirty-two Cherokee chiefs came to Charleston, with a view to represent to the governor, that the nation did not support the warriors who had committed acts of violence upon the whites; that the chiefs had in vain attempted to restrain their young men, and were willing that satisfaction should be made, for these outrages, which the body of their nation reproved. The governor refused to listen to these overtures of peace and set out for Congaree, a place at the distance of about forty miles from Charleston, which he had ap- pointed for the general rendezvous of the militia. The Cherokee chiefs were induced to accompany the gover- nor thither. He had represented to them, that, although he was determined on marching into their country, as they had come to him as embassadors of peace, he would see that they returned unhurt, into their towns ; but, as the whites were much exasperated, he could not an- swer for the treatment the chiefs might receive, if they exposed themselves alone to their resentment. The
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Indians marched to Congaree, apparently satisfied; but in reality, chagrined and vexed, at the manner in which their unfeigned attempts to conciliate differences, had been received. On his arrival at Congaree, governor Lyttleton confined the thirty-two Indian chiefs, as pris- oners of war; and when the army marched, a cap- tain's guard was mounted over them, on the way ; they were made to accompany the army to Fort Prince George, and on their arrival there, were confined in a miserable hut, scarcely sufficient for the accommodation of six soldiers. Shortly after, the governor concluded a treaty of peace, with six of the headmen of the Chero- kee nation, by which it was agreed, that the Indians, in his possession, should be kept as hostages, confined in the fort, until an equal number of the Indians, guilty of murder, should be delivered up to him; that trade should, in the meanwhile, be opened and carried on as usual: that the Cherokees should kill or make every Frenchman prisoner, who should presume to come into their nation, during the continuance of the war; and that they should hold no intercourse with any of the en- emies of Great Britain, but should apprehend any per- son, white or red, found among them, that might be en- deavoring to set the English and Cherokees at variance.
Early in the year, governor Dobbs received de- spatches from Mr. Pitt, informing him, that the king had resolved to exert the whole force of Great Britain and her colonies, to finish the war in the ensuing cam- paign, and instructing him to use his utmost influence with the legislature, to induce them to raise, with the utmost despatch, as many men as the province could spare.
Writs of election were accordingly issued, and the legislative body was summoned to meet at Newbern,
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on the 24th of April. In the county of Orange, a num- ber of disorderly persons rose in arms, and, in a violent and riotous manner, prevented the sheriff from holding an election. The inhabitants of the town of Halifax, claiming the right of being represented in the lower house, under the act of 1715, and governor Dobbs re- fusing to grant them a charter, prevailed on the sheriff of the county to hold an election, and to return Stephen Dewey, the person whom they chose. He was suffered to take his seat.
In opening the session, the governor expressed the pleasure he felt in meeting a new assembly, and his hope, that the great and surprising success of the king's arms, and the distress and ruin of the trade and marine of France, in which the assistance of Divine Providence, was eminently displayed in the defence of the Protestant religion and the cause of liberty, would induce them to use their utmost power, in conjunction with the king's forces from Europe, to drive the French from all unjust acquisitions on the continent, and procure ample secu- rity, from the invasions and depredations of the French and Indians:
He recommended the earliest attention to a court sys- tem, and the appointment of an agent in England, by a special bill.
The lower house, in their answer, animadverted on the speeches of the governor to the last assembly, at the prorogation and dissolution. They observed, that the bill framed by the house had no other object, than the grant of an aid to the king, and the appointment of an agent, as recommended by Mr. Pitt; and in no other instance, had he, or any of his predecessors, taken any exception at the manner in which a bill of supplies
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was framed. In reply to the speech at the dissolution, they took notice, that the treasurers were, by law, to ac- count with the assembly : and the constant practice had been, for them to do so before a committee appointed by the house, who re-examined the accounts on the report of their committee. With regard to the sheriff's, they admitted that they had observed several deficiencies in their collections; but, they added, that, in the con- fused state of the province, from the turbulent disposi- tion of factions, cabals and dangerous insurrections, it could not, with reason, be supposed, that sheriffs, more than magistrates or other officers, could fully discharge their functions; an inconvenience which they hoped would be removed, by the establishment of courts of justice on a respectable footing. They concluded, by assuring him, that those observations were dictated by their duty to their constituents, and not by a desire of raising disputes with him.
The governor replied, that he had laid before the house the accounts lately forwarded from New York, of the sums, issued for the troops sent to that province, and the officers who served on the Ohio were ready to account for the sums they had received. He said no money had passed through his hands; he had only is- sued orders, which the persons in whose favor they were had to account for.
He said the loss of the aid bill was to be attributed to the clause, foreign to the object of it, which the house had insisted on inserting.
He added, that in regard to the accounts of the trea- surers, he had strictly pursued his instructions, which required him to see them properly audited, laid before the legislature, and afterwards transmitted to England :
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that, if the king thought proper to withdraw his instruc- son, he would gladly acquiesce : but he had thought it his duty to inform the house, that the accounts were ir- regular, as no list of taxables were produced by the treasurer for the northern district, nor any arrear return- ed, so that it could not appear what was the amount of the tax, nor whether the deficiency was occasioned by the sheriff's, or the neglect of the treasurers.
The house passed a resolve, asserting their indubita- ble right to frame and model every bill wherein an aid is granted to the king, in such a manner, as they believe inost conducive to his service, honor and interest, and declaring every attempt to deprive them of the enjoy- ment of that right, an infringement on their rights and privileges.
By another resolution, they declared the mode, ob- served by the treasurers in stating the accounts exhi- bited at the last session, agreeable to the laws of the pro- vince and conformable to constant and uninterrupted usage, and the method proposed by the governor, unpre- cedented and repugnant to law.
The houses gave their first attention to the passage of bills for establishing courts of law, which had three readings in each.
By these acts, the courts of judicature, constituted andl'the regulations made for the administration of jus- tice, by the acts of 1754-5, which were repealed by the late order of the king in council, were re-established with some alterations and additions, in respect to the qualifi- cations of the judges of the superior court, the duration of their commissions and the jurisdiction of the inferior or county court.
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The superior court act divided the province into five districts, and appointed courts to be held in each of them semi-annually, by the chief justice and his associate judges, to whom jurisdiction was given in all civil cases, where the demand exceeded ten pounds, and also in all criminal cases, from the highest treason to the lowest trespass.
It was provided, that no person should be appointed an associate justice of the superior court, unless he had been regularly called to the degree of an outer barrister, in some of the English inns of courts, be of five years' standing, and had practiced law in the princi- pal courts of judicature of the province : the commis- sions of the judges were to be during good behaviour.
The county court act gave the justices jurisdiction of all civil actions to the extent of fifty pounds, and in cases of filial portion, legacies, distribution of intestates' estates, guardianship, 'the care of orphans and their estates, to any amount.
The acts varied in so little a degree from those which had lately been repealed, that the lower house were un- der just apprehensions, that the governor's assent to them would not be easily obtained : they therefore re- presented to him in an address, that as the bills for re- storing the courts of judicature, and, through them, life to government and the rights and liberties of the people, appeared to be of such vast importance, they had thought it their duty to give them the preference over all other objects, and they had been despatched with unex- ampled unanimity and concurrence in both houses, and hoped their operation and excellence would distinguish the wisdom and justice of the legislature.
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They urged, that the extreme solicitude of the people for such laws, and their own experience of the great mischiefs which had resulted from a long interval of li- centiousness, called on them to beseech him to give the acts his immediate assent, not only that a proper founda- tion might be laid for rendering so great a satisfaction to the people, but to warrant the house in proceeding to the despatch of other important matters.
They added, they were thus eager to obtain his early assent to those laws, from a desire to proceed to frame a further remonstrance to the king, to show the expedien- cy of their deviation, in some articles, from what may have been considered his directions in framing the bills.
The house strengthened their importunity by an as- surance, that they would exert every practicable endea- vour to demonstrate the strictness of their attention to the general objects which he had, so powerfully, recom- mended at the opening of the session.
When this address was presented to the governor, he replied, that it was of an unusual and unprecedented na- ture, and he would consult gentlemen more con- versant than himself in those affairs.
The governor discovered, by the manner in which he was pressed to give his assent to these bills, that the house intended to regulate their conduct by his, and if he rejected the bills, there was little probability of their paying much attention to his other recommendations. The bills were liable to all the objections, which had caused the repeal of those they were intended to replace ; nay, they were more at variance with the instructions of the crown.
The clause, defining the qualifications of the judges, was an unconstitutional; restraint on the king's preroga-
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tive, almost precluding the appointment of any person from England ; and he had reason to believe, it was in- tended to compel him to appoint three particular per sons, to whom the qualifications were peculiarly adapted. The clause, defining the nature of the tenure by which the associate judges were to hold their offices, consider- ed abstractly, was at variance with the principle of keep- ing all great colonial officers under a strict subordination to and dependence on the crown: but the irregularity of it was the more striking, in relation to the tenure by which the chief justice, who was to preside in those courts, held his office ; this officer, chosen by the king, being only appointed during the king's pleasure.
The jurisdiction of the county courts was extended to fifty pounds, while it had been complained, that in the repealed bill it had been raised to forty. When the ability of the colonists was considered, causes of tha: value were viewed in England as of too great conse- quence and importance to be determined in those courts. in regard to the qualification and abilities of the person: who composed them. There was a still greater absurdi- ty, in restraining the jurisdiction of these courts, in common actions at law to a limited value, and givin .. them unlimited jurisdiction in cases of a more delicat. nature.
The governors of the American provinces, by a stand ing article of their instructions, were inhibited from gi ing their assent to any bill of an extraordinary natur affecting the property of the king's subjects or the trac. and commerce of the colonies, without having first trans mitted a copy of it for the king's consideration, unk - with a clause, suspending the operation of the bill till t. king's pleasure was known : and the ministers in En
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land were inclined to extend, rather than restrain, the sense of this instruction.
Perplexed at his situation, governor Dobbs sought a cloak for his conduct, in procuring the sanction of the advice of the chief justice and attorney general, who were required to declare in writing, whether it was ex- pedient to assent to these bills.
Chief justice Berry, who was in England and had been spoken to, when the repealed laws were before the king's council, answered, that as the superior court bill provided competent salaries for the associate justices, so as to make it worth the attention of persons of skill and learning in the law to accept the offices, whereby, not- withstanding the expensiveness of the circuits, the causes depending in the superior courts might now, without delay, receive proper determinations, the chief reason for repealing the superior court act, passed in 1754, was thereby obviated ; and the attorney general, Tho- mas Childs, contented himself with observing, that the desperate situation of affairs required the governor's assent.
The general expressions, in which those gentlemen couched their advice, did not authorize the belief that it would sanction the step, and the governor determined on temporising, at least till the passage of the aid bill.
In a message to the lower house, on the following day, he expressed the greatest concern that, at any time, he should be compelled to resist the request of the house, and more particularly, at the present important juncture, when they were summoned to meet, by the king's order, to give him an aid of men. He lamented, that the consideration of the king's request, which ought to have been the first object of the attention of
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the legislature, had been postponed for above three weeks, to give way to laws relating only to the interior concerns of the province.
He observed that it was his duty, in common decen- cy and respect to the crown, to give the precedency to an aid bill, over any other; that it had been the uninter- rupted usage of the houses of commons of Great Britain and Ireland, since the happy establishment of their con- stitutions and liberties, by the revolution in 1688, to offer the aid bill to the royal assent before any other; and he found this to be the practice in the province, where all the bills were offered together, except in a single instance, at the last session, in passing the militia bill, which might be considered as an aid bill, since it author- ized the king to march the militia out of the province.
He concluded by saying, it could not be very material if the bills, now waiting for his assent, were postponed for a day or more, and expressed his hope, from the zeal which the house had always manifested to enable the king to drive a cruel enemy from the continent; that if the aid bill was not passed before, it would at least go hand in hand with the others, especially as a delay in raising and disciplining the forces might defeat the king's views.
The house replied, that they could not concur with him in the idea that the court bills, though relating to the interior concerns of the province, were of so light importance. When they considered how many licen- tious, disaffected and evil disposed persons had, for ma- ny months past, assembled in different parts of the country, entered into mutinous and dangerous conspira- cies, broken open the jails, and while they forcibly rescu- ed malefactors, restrained the liberty of innocent persons,
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without any measure being taken to suppress these out- rages; they deemed it a matter of the utmost impor- tance, that court laws might be immediately passed, to strengthen the hands of government and enable it to check these disorders.
They added, that they apprehended that, according to the usage and custom of the British parliament, the commons were at liberty to offer the bills they passed for the royal assent, at any time they thought proper, and were governed in this respect by particular circum- stances and the emergency of the times.
Having at all periods manifested their loyalty to the king and their zeal for his service, by granting every aid of money and men which the governor had asked, even to the impoverishment of their con- stituents, and being still ready to risk their lives and properties, to join in defence of the king's rights and possessions. they had now an aid bill before them, which, as well as several others under con- sideration, had such an intimate connexion with, and dependence on, the court bills, that they could not operate till the latter were passed into laws, they felt it their indispensable duty to give them the precedency.
They concluded with a hope, that the governor would immediately give his assent, and thereby af- ford protection and security to the lives and pro- perty of their constituents.
The governor replied, that finding the house, mis- led by some of the king's servants, were determin- ed to proceed on no business until they knew the fate of the court bills, it became his duty to inform
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them, that those self interested gentlemen, who had procured the repeal of the former court laws and had carried the present bills through the houses, were the cause of the delay in their passage, as well as that of the aid bill; having procured to be insert- ed, an unnecessary clause, diminishing the king's prerogative, and, with a view to serve their own ends, placed the chief magistrate in the unpleasant dilemma of betraying his trust and disobeying the king's orders and instructions, by granting his assent, or seeing a flame raised against his administration. if he withheld it: a flame which, one of those gen- tlemen had already raised. contrary to his duty to the crown, in order to throw off the merited blame of having procured the repeal of the former bills, by his artful recommendations and representations; while he now sought to have them re-enacted with supplementary clauses, contrary to the king's in- structions.
As to the great tumults and riots, which were mentioned, as causes for the immediate passage of the bills, he observed, that during the period of eight months, since which, the repeal of the court laws had been promulgated, no application had been made to him for a commission of oyer and terminer, which would have answered the pre- tended purpose; if the court laws were indis- pensable, unexceptionable bills should have been offered him; and the house might have known on application in what parts they were repugnant to the king's orders and instructions, which might have been done, and the bills ratified early in the session.
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He informed the house that he could not pass the bills, unless the exceptionable clauses were expung- ed, or a clause was inserted suspending the opera- tions of the laws until the king's pleasure was known. He laid before them the clauses in the king's in- structions which forbade his assent, in their present shape, to the bills, and concluded by observing, that after the aid bill and such other bills as were ready, were passed, he would prorogue the legislature for a day, to give them the opportunity, in a new ses- sion, to model the bills in such a manner, as might allow him to pass them into laws.
The house went into a committee of the whole on the distressed state of the province and the governor's last message. They closed their doors and laid themselves under an injunction of secresy, under pain of expulsion. The committee reported a string of resolutions, containing their complaints against governor Dobbs; they were recapitulated in an address to the king, which the house approv- ed of.
After the usual expressions of loyalty and fidelity to the person and family of the king, this paper states, that no consideration less than the prospect of total ruin, from undue exertions of power and in- ternal commotion in his distressed province, could have induced the house to trouble his royal ear: but that, when by the injudicious and partial ap- pointment of justices, unqualified for the trust, and the removal of others, liable to no objection. magis- tracy had fallen into contempt, and courts lost their influence and dignity; when rioters were permitted to assemble in several parts of the province, erect
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