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Preface to Volume 18 of the State Records of North Carolina
Clark, Walter, 1846-1924
May 01, 1900
Volume 18

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PREFATORY NOTES.

The year 1786 is memorable as being the date when the deficiencies of the old Confederation became so apparent that the movement for a change was inaugurated that led to the adoption of the present condition. On July 10th, 1786, Gov. Caswell addressed letters to Gov. Abner Nash, Alfred Moore, Hugh Williamson, John Gray Blount and Philemon Hawkins, informing them that in consequence of the Acts and Resolves of some of the other States to appoint Commissioners to take into consideration the trade of the United States and to report to the States such a draft of an act as would best promote the commercial interests of the United States, the Council had advised him to appoint them commissioners to attend at Annapolis on the first Monday in September.

Gov. Nash and Mr. Blount were delayed by illness, and Mr. Williamson, waiting for them, was detained and did not reach Annapolis until the 14th of September, on which day the other commissioners, having determined not to enter on the work, adjourned.

But before adjourning, they prepared a letter to the several States recommending that a convention be held at Philadelphia the following May with power to take into consideration other subjects than merely trade and commerce, and on this recommendation the Convention was held which framed the Constitution of the United States. On the part of North Carolina, Gov. Caswell, Col. Davie, Alex. Martin, R. D. Speight and Willie Jones were appointed to this convention; but Col. Jones declining Hugh Williamson was appointed in his stead.

An imperfect Census of the State was taken in the year 1786, by State Authority. The returne were certainly far from accurate: but they show that Halifax was the most populous county in the State, having a population of 10,327. Caswell came next with 9,838. Edgecombe third, 8,480; Warren, fourth, 8,295 and Northampton next with 7,043. Duplin had 5,245, Sampson 4,268; New Hanover 5,042 and Richmond returned only 2,585. From these figures it would seem that the overflow from Virginia into the border counties

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on the North maintained that section as the most populous portion of the State.

The Assembly met November 20, 1786, at Fayetteville. James Coor of Craven County was chosen Speaker of the Senate and John B. Ashe, Speaker of the House. In the Senate Elisha Battle and Genl. Rutherford were among the leaders; while in the House there were Richard D. Speight, Wm. R. Davie, Archibald Maclaine, Reading Blount, William Polk, Stephen Cabarrus, William Hooper, Judge Sitgreaves and many others of the most influential characters of that day.

There was considerable excitement throughout the State at the time the Legislature assembled because of frauds discovered in the disbursement of public moneys. A Board of Commissioners had been appointed for liquidating the army accounts. Certificates were to be given by officers certifying the claims of soldiers and of others, and these certificates had to be passed on by the Board, and upon their approval the Treasurer of the State was to pay the same.

In many instances, certificates were improperly made in blank; in others certificates were given where no service whatever had been rendered. In some cases forgeries were practiced. Some of the officers, it was alleged, gave certificates under an agreement to share in the spoils; and it was thought that some of the Board shared in the frauds.

Governor Caswell in his message, upon the opening of the Legislature, reported:

“The frequent and repeated observations of individuals and the clamor of the people at large respecting the conduct of the Commissioners for liquidating the army accounts, and their suggestions of many fraudulent accounts being passed, induced me to state the matter to the Council who advised me to direct the Treasurer to stop the payment of any Certificate granted on accounts passed by that Board since the sitting of the last Assembly, and also advised me to direct the Commissioners to transmit to the present Assembly all such accounts and vouchers as were lodged in their office since that period. This advice I have pursued, and I flatter myself these officers have and will comply therewith, though report says that the Treasurer has not attended to it, and the clamors of the people have since been greater than before, and some illiberal suggestions have been thrown out against several of your principal officers.”

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The subject was at once taken up by the Assembly and pressed with vigor. From information furnished by Governor Caswell, a resolution was adopted requiring the Governor to cause to be apprehended all the persons concerned, of whom twenty-three were individually named in the order of arrest, and the names of twentyeight witnesses were stated. The accused were all to be arrested and held in close confinement as “prisoners of State.”

Gov. Caswell's measures for carrying into effect the directions of the Assembly were so prompt and efficient, that the Assembly passed a resolution that “it entertains the highest sense of the upright, spirited and vigorous exertions of His Excellency in that behalf.”

On the arrest of the prisoners, a grand Committee was raised, from among whom a sub-committee was appointed to examine the prisoners and to take depositions.

On December 9th the Houses met in joint session, with Elisha Battle in the chair to hear the report of the Committee which was voluminous and full. The report signed by Gen. Rutherford, Gen. Gregory, Col. William Polk and A. Neal, was explicit and had the clear ring of impartial investigation.

Henry Montfort, a member of the House, was implicated and given a day to defend himself from the charges, which he failed to do to the satisfaction of the House, and was expelled.

The Treasurer, Memucan Hunt, also, was required to appear before the Houses and was heard in his defence. His term was about to expire; and John Haywood was elected Treasurer in his place.

Finally, it was “Resolved, that the several persons apprehended and charged with the crimes of fabricating false accounts and being concerned in wrongfully and fraudulently procuring claims to be passed in the Commissioners' office of Army Accounts, be admitted to bail on giving proper security for their personal appearance at a Court of Oyer and Terminer to be held at Warrenton on the last Monday in January next, and also for the security and forthcoming of their respective estates and that the Clerk of this House be directed to deliver the depositions taken against such persons and all the papers relating thereto to the said Judges of the Superior Courts who are requested to proceed accordingly.”

McKee in his Life of Iredell says: Indictments were speedily found against McCulloch and Montfort, and others of lesser note. The military and legislative services, the wealth, the social rank,

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the influential connections of the commissioners, the array of attorneys renowned for eloquence and learning—all conspired to raise public expectation to the highest pitch. Alfred Moore was prosecutor: Iredell and Davie appeared for the defence. The profound interest of the public in the success of the prosecution, and the heavy stakes of the defendants—their fortunes and more than all their characters, stimulated the efforts of counsel to the greatest degree; and seldom in North Carolina has a more brilliant display of forensic power been witnessed. Montfort was acquitted; but McCulloch was convicted, sentenced to pay a fine of £4,000 and to be imprisoned twelve months in the Halifax jail. His advocates thought that through his whole trial he met with the greatest tyranny and injustice from two of the Court. The people of Warren spoke with the utmost horror and resentment of his sentence. At the same Court, Price, Butcher and Reid were convicted—the two former of presenting fictitious accounts, and the latter of signing blank accounts for pay. The moral result of the trial was most salutary; it vindicated the supremacy of the law, and the confinement of McCulloch in a rude and noisome cell where stench was intolerable, proclaimed to the world that in North Carolina, neither wealth nor influence could shelter any man from the penalties of crime.”

At the same session some antagonism of long standing between the bar and the bench came to an issue. There had been several publications made by some of the lawyers against the Court, and to some of them Judge Ashe had replied, all of the papers being signed with a nomme de plume. The object was to write the Judges off the bench; but in the controversy, it has been said, the lawyers got somewhat the worst of it.

Archibald Maclaine who was a prime mover in the matter being a member of the House now exhibited charges against the Judges. The allegations were that the Judges had suspended the operation of an Act of the Assembly; that they had given an illegal judgment in banishing two tories, Britt and McNeil; that they delayed the trial of causes by their disagreements on the bench; and that they did not attend court regularly. These charges were referred to a committee on the Administration of the Law, and the Judges were notified by the speaker of the House that they could attend and be heard in regard to the accusations.

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Judges Spencer and Williams attended and made some verbal explanation before a joint session of the two Houses. Judge Ashe wrote a letter addressed to the Speaker of the House, excusing himself from attending. He said that he presumed that the Houses did not mean to go into a formal exercise of Judicial power; “nor can I go from member to member out of doors, assuring each of them in turn of my innocence, and thus endeavor to exculpate myself and do away with offences that never existed. This would be lessening myself and degrading that high character my country have been pleased to dignify me with. I cannot stoop to it. The measure itself would indicate guilt. In my judicial character I am righteous and therefore bold.” He mentioned some of the charges that had come to his ears, and said as to that of holding the act of the legislature inoperative. “If my opinion of our Constitution is an error, I fear it is an incurable one; for I had the honor to assist in the forming it, and confess I so designed it; and I believe every other gentleman concerned did also.” Regarding the banishment of Britt and McNeil, he said “they were objectionable tories who went off with the British, and on their return the peace of the community was endangered. The Court imposed a small fine upon them and required them to depart from the State within sixty days and not to return until the pleasure of the Assembly should be known thereon. The Court thought that the peace of the community made the measure necessary, and that the law and treaty justified it. This is the foundation of that charge against the Judges, and I suppose it is considered among the Tories as a mighty achievement, a matter of great exultation and triumph that their champion dare stand forth, and in the face of the legislature accuse the judicial powers of the State for presuming to molest those respectable personages.”

The Joint Assembly, having considered the various charges, took up each separately and found that the Judges had been guilty of no misdemeanor in office. And a resolution was adopted thanking them each by name “for their long and faithful services whilst they have been in that department.” A resolution of thanks proposed in the Senate, however, made an exception to the effect that banishment was a punishment unknown to our laws: but the House struck that out. Thereupon protests were field by Wm. R. Davie, Mr. Hay, Mr. Hooper and some others, that while they did

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not think the Judges had been guilty of any misdemeanor, yet that the judgment in the cases of Britt and McNeil was illegal and an error.

Before the same Assembly was brought the subject of constructing the Dismal Swamp Canal, the State of Virginia having sent two Commissioners to request that North Carolina should join that State in the passage of a law, that would be irrepealable except by mutual consent, looking to the opening of the canal. But there was a suggestion that if the products of this State should be marketed through Virginia ports, by means of the canal, it would be detrimental to the foreign trade of our northern coast towns, and the subject was postponed until the next Assembly. In view of the inconvenience of having the public records kept at the homes of the several officers, the Legislature at this session took the first step toward having a permanent capital of the State. It directed the Treasurer and the Comptroller to open their offices at Hillsboro and to keep all of their records there, and their offices to be always open.

The condition of affairs in that part of the State west of the mountains, where the State of Franklin had been established by the residents, was still in chaos and anarchy.

The act ceding that territory to the General government, having been repealed, North Carolina asserted her dominion and purpose to govern it; but the Legislature of Franklin, having established courts that were adjudicating cases, and having levied taxes which their sheriffs were collecting, felt indisposed to abdicate and abandon their independence. It again appointed commissioners to attend the legislature of North Carolina and urge that the new State might be recognized. This appeal was not favorably considered, and Judge John Haywood was appointed a Judge and directed to proceed to the western counties and hold a court there.

But to add to the complications the growth of the western settlement had interfered with the Indians who now were alarmed lest they should be deprived of their hunting grounds, and Indian hostility began that rendered communication with the west very hazardous. Judge Haywood excused himself from executing his commission, since the danger to his life would at that time be so great. The subject of the western counties came up in the Assembly and Mr. Elisha Battle submitted a report to the effect that this State

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was “impressed with a sense of the sufferings of those people during the anarchy that has long prevailed among them, and that as their numbers and wealth will by no means enable them to support a separate government as yet, the Legislature cannot accede to a separation at this period, without abandoning a considerable number of her worthy citizens to ruin and distress.” But the committee recommended an act of oblivion as to all offences and the restoration of the State's authority, with a promise to grant a separation whenever it should become expedient, &c.

In another year, all traces of Franklin were obliterated from the polities of the State.

Walter Clark

Raleigh, N. C., 1 May, 1900.