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Letters from George Burrington, John Baptista Ashe, and Cornelius Harnett concerning a dispute between the Governor and his Council
Burrington, George, 1680-1759; Ashe, John Baptista, d. 1734; Harnett, Cornelius, d. 1742
May 21, 1731 - May 22, 1731
Volume 03, Pages 168-175

[B. P. R. O. North Carolina. B. T. Vol. 8. P. 39.]

These Papers that appear as an appendix to the Journals or proceedings of the Council were occasioned to be placed in this manner because they were never read in Council, therefore could not be regularly entred being contrary to an Instruction. Mr Ashe did not come to the Council

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that day tho' duly summoned, nor Mr Smith the Chief Justice, nor Mr Porter Judge of Admiralty, Mr. Ashe entred the Council room in the evening when I was considering the Chancery Bills in the Office with these two Papers that I have answered and gave them to me, I read them over and told him that the next morning I hoped the Members of Council would meet and very civily desired his Company he absolutely refused to come and desired his Papers might be entered in the Council Journal I told him that could not be done without the Council met, I then told him he should have an answer to his Papers in an hour, he very rudely told me he would go out of town directly since which time I have never seen nor heard anything from Mr Ashe neither did he take any other leave of me than is above related.

To His Excellency the Governor &c.

May it Please Your Excellency

Having read your Excellency's reply relating to the affairs of the Assistants, occasioned by a Message from the Assembly we beg leave to observe to you that you not only not opposed but concurr'd in the answer to the Message of the Assembly. However if your Excellency (having sufficient reasons) has altered your opinion we are so far from reflecting on you therefore that we readyly joyn with you in thinking it better to retract than obstinately to persist in error and we should with alacrity we assure you (were we once convinced) follow your example.

As to your Excellency's remark on our running into niceties and distinctions we say we think we made none but what were necessary. As to the Question we asked relating to the Authority given to the Chief Justice by the King's warrant we still say that if the Chief Justice power is not a sufficient Power without that of Assistants to hold a Court, we cannot see how that Power can (as in His Majestie's said Warrant) be called a full Power and Authority to hold such Court: as to what your Excellency is pleased to say that we wisely observe; we believe you mistake us what we observed was that all the inference which could be made from His Majestie's 8th Instruction was, that Assistants were or might be, not saying what Assistants that perhaps they might not be intended Assistants to the Chief Justice, but supposing they were, we argued that no inference could be made from thence of their power so as to define it neither can we think our doubt, whether by Assistants, there is meant Assistants to the Chief Justice is so extraordinary as you represent it. And indeed we do not perfectly understand your Excellency when you say the Instructions couple Judges, Assistants Justices

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&c the word Assistants stand severed from the rest by commas as do the titles of the other Officers one from the other and by it are intended distinct Officers for had it been only as an epithet or adjective to be affixed either to Judge or Justices then in the Instruction would have been used the word Assistant, not Assistants, and it would not by the Comma have been severed from its proper substantive. We cannot see how the 45. Instruction affects your Excellency in the present case for allowing (which we do not) that the investing the Chief Justice with this Power was erecting a new Court or dissolving one already established yet the investing him with such Power is not an Act of your Excellency's but of His Majesty, for it is from the King's Warrant he derives it and by virtue thereof claims it.

That there have been Assistants in the General Court we deny not but we cannot grant that Assistants have a Judicial Power equal to associate Judges, the very word seems to imply the contrary. We cannot here help thinking that your Excellency mistakes our words when telling us that we seem to recede from what we had said, we allow that there should be assistants to informe and advise the Chief Justice as Master in Chancery, whereas we said no such thing speaking indeed of the sence in which the word Assistant was generally taken when apply'd to an Officer of a Court we said it was to inform and advise, without having any judicial Power of which we gave an Instance Vizt. of the Masters of Chancery who were wont to be styled Assistants to the Chancelor, but we never said or meant that Assistants were to advise the Chief Justice as Masters in Chancery.

We might ask your Excellency several Questions which according to your Secret of the Assistants Power would be attended (as we think) with difficulties as allowing an Assistant a Judicial Power how great it was? how to be distinguished from that of the Chief Justice so as not to equall it? if two Assistants were of the same opinion whither their united judgments would not be superior to, and over rule that of the Chief Justice? but as we have given our thoughts we are unwilling to proceed any further or raise new matter We shall only add as seeming to support our opinion the practice formerly in South Carolina where (we are well informed) the Chief Justice was wont to have the sole Judicial power in the supream Court: how it is now we cannot say: but if this is not thought a sufficient authority we beg leave to referr your Excellency to the thirty fourth & fifth of Henry VIII Cap. xxvi. by which statute it was provided that one Person should not only be Judge of one Court but of several by Turns and those too in the Common Law so that we cannot

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conceive that such Establishment is contrary to the nature of such Court nor to the Constitution of the Laws of England, but since your Excellency by your Reply seems fully resolved we shall desist without adding anything further on this subject

JN. BAPta ASHE
CORNs HARNETT.

To His Excellency the Governor &c.

May it please your Excellency

I declare that for my part I could have wished (had not your Excellency insisted on the contrary) to have avoided this method of debating matter of Council in writing because it generally tends rather to prolong debates than to shorten or bring them to a final Issue.

I believe if your Excellency will be pleased to recollect you may remember you not only gave your opinion in the affair relating to the evidence of the late Council against Sir Richard Everard but also your Resolution as to my evasive answers your Excellency only accuses me only in general Terms without pointing out any particulars so that I shall decline saying anything farther thereon, only than that if I used too many words it was to shew the reasons induceing me, or to state the matter in a clear light. I shall pass over the reflection your Excellency is pleased to make of my want of Candour and Plainness; Indeed I should now (without at all rejoyning) have acquiesced had not your Excellency in this your reply as to the Bill of Rents &c. given the affair such a turn, as might perhaps tend to my disadvantage. As your Excellency has recommended to me plainness I hope you will not be displeased with me if I now make use of it, when I say the reason or cause of my Papers coming out of time was that your Excellency after having given the Council a day to consider of & answer your Quæry relating to the Bill concerning Rents and Fees on that very day in the morning without informing the Council of your design to prorogue the Assembly (unless at the instant you sent for them) you sent for the Lower House to Prorogue them on which desiring only a few minutes time to transcribe my answer from the rough minutes, I offered to put it in, but that you should not stay the Prorogation: what indeed made me so solicitous to put in that answer, was the great desire I had of promoting His Majesty's service and the Country's interest, and the reason why I preferr'd it afterwards was (as your Quæry was entered on the Journal of the Council) to shew that I had not been backward or negligent in giving my answer (which I looked on as my Duty) in due time, or at least at

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the given time: These my reasons for acting in this affair as I have done being (I think) very just, I am surprized that you are pleased to accuse me of being very particular, and of not the fairest dealing herein: As my proposalls (tho' made some of them by word of mouth before the last reading of the Bill) will be now of no use, the matter being over, I shall forbear (tho' I could) to expatiate in their vindication: Let them who read them judge of their reasonableness.

If in this or any other of my Papers any indecent or misbecoming expression may have escaped my pen, I must beg you'l not impute it to design: for I assure you I shall always strive to behave myself to your Excellency with great respect & good manners.

JOHN BAPta ASHE.

To Mr Ashe & Mr Harnett Members of Council

Gentlemen,

I have your Paper of yesterday, I never intended this tedious debate when I put three short Quærys fairly stated in writing that I might obtain as plain an answer to them, but you ran into a long dispute upon it, which I complained of to you and now to mend the matter you have run it into further niceties that only perplex it the more; as to the Assistant Judges you say the 8th Instruction does inferr there should be Assistants, but then you seem at a strange loss what they should be, and go on to observe what perhaps it might not intend, and you add that their Power is not defined and from thence you are making out your argument that they have no Power, for that is what you are contending for and at last you are drove to the refuge of a comma in the writing and an adjective that might have been, and raise such distinctions upon it as the Com̄on sence of the matter seems quite lost, for my part I think it sufficient to take the plain sence of things If the Instructions do do not define the Power of Assistants it no ways restrains them, and then it must be taken according to their usual Power and as the Chief Justice is usually called (by way of Eminence) the Judge so the other Justices of the General Court are usually called Assistants or Assistant Judges, and there are no other persons in the Government but they who are so called so that I cannot imagine why all this cloud of Difficulties is raised to find out who, or what is meant by Assistants, or to what purpose it is unless purely to perplex the matter to argue what the word might or could mean, and their Power might be easily known from the constant usage here, if the enquiry was fairly made instead of running divisions and multiplying arguments upon it. And as the General Court here hath constantly consisted of the Chief

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Justice and Assistants, I am persuaded the allowing the Chief Justice to be sole Judge of the Court now would be establishing a new sort of a General Court and destroying the old form and so is directly against my 45th Instruction and it's but a weak shifting it off to say it would not be my breaking the Instruction since it's owing to the King's own Warrant that grants the Chief Justice full Power &c. but as that mentions nothing of the Assistants, and my instructions from the King do not define their Power as you say I think my allowing that they have no judicial Power as you hold would be to make it a new sort of a Court, and plainly against the 45th Instruction as well as against the Nature of a settled supream Court of Common Pleas. And I am really at a loss to what purpose you referr me to the 34 or 35th of Henry the 8th that appoints an Itinerant Judge for the Sessions in several Counties in Wales unless you could produce some Act for a single Judge of the General Court here, or usage, or custom for it. Indeed you give me one example from South Carolina but you would have done well to have remembred that the complaint against that Judge unregarded by the Proprietors was one of the principal reasons the People gave to justify their taking up armes and throwing off the Lords Government. As to the King's Warrant which not withstanding what has been said you still insist on, that grants the Chief Justice full power of holding the Courts and you say if the Chief Justice's power is not sufficient without the Assistants how can it be called a full Power?

I think when you were in this way of disputing you might have gone a step further and said since the Chief Justice has full Power to hear and determine all causes and no mention is made of Juries, therefore the may hear and determine them without Juries for to use your own argument, if his Power to hear and determine causes is not sufficient without a Jury, how can it be called a full Power to hear and determine causes?

And here I shall leave it having I think said sufficient to convince you that your Paper is very triffling and only a Quibble upon words.

GEO: BURRINGTON

N. Carolina The 22d May 1731.

Mr Ashe,

I have your single Paper of the 21st of May in which you say in the affair of Sir Richard Everard I not only gave my opinion but my resolution I remember I told you that upon His Majesty's Instruction

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requiring me to examine into the Complaint against him, I should act in it as my own Conscience and Judgment directed, but at the same time desired the opinion of the Council which had it been candidly given would have had great weight with me.

As to what you say about you giving me your paper concerning the Bill for Fees and Quit Rents after the Assembly was prorogued, I am at a loss to know what you mean by a given time, and it's being ready against the day appointed for receiving it, but that on that very day in the morning I proroged the Assembly insinuating that I prorogued the Assembly on a sudden and by surprise which is a very false suggestion because Mr Ashe knows very well the contrary, nor do I remember I fixt any day or time for the Council to give me their advice about the Quit Rents when I demanded in writing their opinion upon it, but I expected at least on the Conference with the Lower House a day or two after upon that Subject that the Council would have assisted me with their advice being obliged by their oath so to do, I several times put it to the Board at the conference, if they had anything to offer upon it, but the whole debate was left to me. Some in the Council indeed declared they would not concurr with the Bill in allowing the Fees should be paid in Bill money at 150. per cent. which the Lower House after the Conference was over came to a final resolution to advance no further upon, and when I found that was their ulltimate and observing the secret Practiseing and Designs set on foot by yourself and others, I found it necessary to put an end to the Session, which Mr Ashe knew was expected on the Saturday before, but I continued them till noonday, and in all that time Mr Ashe who was several times with me in private and Publick especially the morning before the Prorogation, might if he had been so pleased, have acquainted me with this Paper he had or was about, but that was not the only Instance of shyness and reservedness Mr Ashe used on this and other Occasions. However since you say your Proposals in the Paper were for His Majestie's service and the good of the Country, which if really so can never be out of time with me.

I shall only desire Mr Ashe to consider whither it be for His Majesties Service that the Quit Rents should be received in Rice and Tobacco at 11. shillings per hundred that we all know is farr above their real worth in Proclamation money which His Majesty has graciously condescended they should be received in the place of sterling which is due to him, thereby giving away to the People one fourth of His Rents, and whither it be for the Good of the Country to run into Parties, beget misunderstandings and secretly to disaffect People to the Government and so keep

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things in suspense and confusion instead of concurring openly and heartily with me, who have always been your sincere friend, in settling things in the best manner for the Country and most agreable to His Majestie's Instructions, which I shall still go on to pursue tho' I have not the Pleasure of that Assistance I thought I had reason to expect from you, especially, tho' I find myself deceived. For the designs against me are not unseen & I perceive I am to have all the difficulties that can be thrown in my way, but as I have acted steadily for His Majestie's service and the Good of the Country which are my constant Aims, I am sure those who with such Artifices oppose me whatever popular or specious pretences they may make will in the end be found far from being good Subjects to the King, or True Friends to this their Country which I can truly say no one man in it has done more for or wishes it better than

GEO: BURRINGTON

N. Carolina. The 22d of May 1731.

The within is true Copies from the Originalls lodged in the Secretary's Office & examined by

ROBT. FORSTER Deputy Secretary.