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Colonial and State Records of North Carolina
Petition of Samuel Northey concerning his imprisonment and trial
Northey, Samuel
April 29, 1728
Volume 02, Pages 757-761

[B. P. R. O. B. T. Proprieties. Vol. 12. No. 92. R.]

North Carolina—ss.

To the Honoble Sr Richard Everard Baront Governor Captain Genl Admirall & Com̄ander in Chief

April 29th 1728

The petition of Samuel Northey most humbly sheweth That a few days agoe Yor Petitionr being taken into custody by John Falconer on an Admiralty Citation he applyed to the Honoble Christopher Gale Esqre Chief Justice And in the Genl Court Office entred his complaint of

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Prohibition Setting forth that he was cited by a process granted by Edmond Porter Esqre Judge of the Admiralty and taken into Custody by John Falconer pretended Marshall of the said Court to appear on the twenty fifth day of this month of April in the said Court to answer the Libell of James Trotter of Edenton Innholder for the sum of fifteen Shillings and sixpence for Victualls and drink sold the said Northey in Edenton which matter not being within the jurisdiction of the admiralty the said Northey prayed his Majestys Writ of Prohibition to Prohibit the said Judge and the officers and Ministers of the said Court and the said James Trotter from proceeding any further in any manner in the said Suite which was granted and a Writt of Prohibition thereon made out forbiding the said Judge on any Accot or manner whatsoever further to proceed or hold plea thereon or Suffer any further proceedings to be had or Attempted in his said Court thereon which Prohibition being delivered to the said Edmond Porter instead of Complying with his Majestys Said Writ having required yor Petitionr to plead and he refusing the said Judge did order the said Falconer his pretended Marshall to take into Custody yor Said petitioner which he accordingly did and held in close Confinement till the next day when the said Edmond Porter Judge notwithstanding the said Prohibition did convene yor petitionr again to answer the said suite and altho the authority of the said Court was still denyed in the said suite and the Prohibition urged yet the said Edmond Porter presumed to proceed and Adjudged yor petitioner to pay to the said Trotter the sum of fifteen shillings and sixpence and the costs which were taxed so high as to amount to about fifteen times the Principal debt and for not paying it granted process whereby the said John Falconer pretended Marshall took the body of yor petitioner into custody and the said Judge and pretended Marshall having got John Mathews deputy Marshall in ye precinct of Chowan in ye County of Albemarle with them who had the key of the County Goal in Edenton com̄anded him to deliver it up which he (hesitating in) the said Judge orderd the said John Falconar to take him the said Mathews into Custody which he accordingly did and so by threats and Compulsion took away the key of the said County Goal and thereby took the same out of the provost Marshalls hands wholy who by Law has the keeping of the said Goal and all Prisonrs therein both Criminals and others and all this without Applying to the said provost Marshall who was thereby divested of his Goal and without any authority from the Governr or any Magistrate or Justice having gotten the key in this Manner the said John Falconer did carry yor petitionr and him comitt to the said County Goal and there hath
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close confined him all which proceedings yor petitionr conceives to be utterly against all Law and Justice a great Oppression of the Subject and in Violation of the rights and Liberties of the People in high Contempt of the Kings Writt of Prohibition and derogatory to the authority of Government and now your petitioner having moved for a habeas corpus to the Chief Justice but he conceiving since his Majestys Writ of prohibition was denyed and rejected it would be to Little purpose to order Yr petitioner his discharge not doubting he would be held notwithstanding by the Violence of the said Judges proceedings unless some Act of Government should free ye petitionr from such forceable detainer Wherefore yor petitionr Implores redress from yor Honor & beggs Leave further to observe upon it that he is advised that tho there be often disputes Concerning the Jurisdiction of the Admiral Court the same is always determ'ed by the Com̄on Law Judges and when a Writt of Prohibition is granted (which is a Writ Ex debita Justitia) the Admiral's Court Stayes all proceedings thereon and if the proponent is not satisfied then the matter is Argued before the Judges where the writ of Prohibition was granted and if the matter Appear to them not to be in the Admirals Jurisdiction the Prohibition Abides but if it be judged to Lye in the said Admirals Court then a Writ of Consultation is granted and the Court of Admiralty proceeds but without that for the said Court to proceed is against all the rules of Law and utterly unwarrantable and unpresedented & tho it is say'd that the said Judge of the Admiralty Conceiving himself more imediately the Kings Court then the Temporal Courts within this Charter Government are and that he is not to be under their Control but ye petitionr is advised that the said suggestion is of no weight for as that Judge holds under the Admiral who derives Authority Originally from the King to the Comon Law Courts are held here under the Lords proprietors who Originally derive that power from the King too and the General Court here by the Cheif Justices Commission and Authority have the same power in all matters and things here as the Kings Bench hath in England and therefore power to grant prohibition when the Admirals Court here Exceed their bounds and Trespass on the Com̄on Law which is every Englishmans birthright and the people here being his Majestys liege Subjects have right to all the Laws and priviledges of English Subjects And it was allowed in the complaints Against Judge Trott of South Carolina to be the principal one that he being Cheif Justice under the Lords Proprietors took a Commission to be Judge of the Admiralty so that no Prohibitions Could be granted and the Subjects thereby were debarred of that great priviledge; seeing
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then that this suite is not within the Jurisdiction of the Court of Admiralty for these reasons—Vizt

1st Because there is a Law of this country that such small and mean causes shall not be tryed in any Court whatsoever but before a single Magistrate to prevent Vexatious suites and high fees which in this Court appear to be so very exorbitant being more than fourteen times the debt in this case.

2ndly For that yr Petitionr is a Liver and free holder in the country and had he absconded we have a Law directs how Process shall be served in such case out of the Comon Law Courts

3rdly He being Master of a Vessell (which all this while he being thus detained) is wholly taken out of his Charge and that & the Cargo in the utmost danger of being lost diminished or damnified he hath given bond of five hundred pounds not to depart without License that so all Creditors may have remedy.

4 He was so farr from concealing himself on board his vessell (as was pretended) that he was dayly and sometimes hourly on shoar his vessell being hauled into the Creeks Mouth and within a few rods of the shoar and tendered the money to the said Trotter before he was taken by the Marshall of the Admiralty who served the Citation on him on shoar.

5 For that the cause of action being for a Tavern score for Victualls and drink of an innholder in Edenton and this too sett forth even in the body of the Libell it self it cannot possibly be thought to lye within the Admirals jurisdiction and appearing so in the body of the Libell it is held that the said Judge of the Admiralty comes under a premunire for holding plea thereof at all as Mr Molloy hath determined and further by the same rule if this case lay in Admiralty Court because the debt was gott afterwards on the Water by the same rule any suite might be drawn into that Court if the party att any time should be water born which tho' absurd yet is insisted on Wherefore on the whole the matter being so apparently wrong and injurious the Kings writ of prohibition disregarded and your petitioner not only most grievously oppressed thereby but he and other his Majestyes leige subjects will by such fallacious suggestions and arbitrary proceedings if not remedyed be divested of their rights and priviledges the Kings Laws be violated that most valuable benefit of Juryes be lost and all depend on the determination of one man contrary to all Law and Justice Your petitioner therefore humbly prayes that he may be freed from this forcible detanier and that such measures may be taken as in yor Honors wisdom shall be proper to redress such grievances and remove such oppression that not only the law may have its course

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Justice be maintained and the authority of the Govt the Kings writ supported and the Liberties of his Subjects preserved but that yr petitioner may be secured and protected from any further violences which he still apprehends on the same Matter if not deterred and prevented by your honor to whom as the head of the Government yr petitioner seeks for safety and protection.

And further yor petitionr complains that one John Leakey was made by the sd Judge register of the said Court of Admiralty whom the Petitioner hath great reason to fear hath made false entrys in the said case & tho' great sollicitations have been made for coppyes which the said Leakey promised from time to time should be immediately granted yet he still hath delayed and is gone out of town without giving coppyes which thereby cant be had by your petitionr who humbly submits the matter and himself to your honor as in duty bound that pray