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Colonial and State Records of North Carolina
Memorandum from Gabriel Johnston to the Board of Trade of Great Britain concerning blank land patents
Johnston, Gabriel, ca. 1698-1752
August 02, 1735
Volume 04, Pages 296-299

[B. P. R. O. North Carolina. B. T. Vol. 9. A. 57, 60, 62, 68. Vol. 10. B. 33, 37.]

The Case of the Blank Patents in North Carolina fairly stated in behalf of his Majesty.

It is confessed on all sides that many years before the year 1724 the lands office for the County of Bath was shut up and the Governor and Council by the most Direct explicit and frequently repeated orders from the Grand and absolute Lords Proprietors were deprived of all power of granting Lands and absolutely discharged from selling any in the said County unless by an Order from their Board in London upon the payment of twenty pounds sterling per 1000 acres there.

This Prohibition to grant or sell Lands in the County of Bath except in the manner aforesaid was never removed untill the Crowns purchase That it was universally known to all the Inhabitants of this Province that the Governor and Council had no power or authority to grant or sell lands except upon the Terms above mentioned plainly appears from what follows.

In the year 1724 it was a general complaint through the Province that the Lords Proprietors had absolutely discharged the sale of Lands in the County of Bath except upon Terms that could not be complyed with viz: 20lb ster: (payed at their Board in London) and that this Prohibition greatly hindered the settlement of the country. The lower house of Assembly did upon this address the Council to interceed with the Lords Proprs to withdraw this order which the Councill did and upon a second address the Council ventured to make a regulation by which people were allowed after a survey to sett down and cultivate tracts of land in the County of Bath and pay 3d per hundred acres and that persons so cultivating should have the preference in the purchase of such

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lands whenever their Lordships should be pleased to permitt their lands to be sold, but even this Regulation was to continue in force no longer than untill the Proprietors pleasure should be known from all which I shall only make this plain inference that when this Prohibition to the Governor and Council was reckoned a General Grievance and as such was represented in the General Assembly and afterwards such solemn and deliberate proceedings of the two parts of the legislature had thereupon in order to prevent its bad consequences, It cannot with the least modesty be pretended, that this Prohibition did not at this time Exist and that it was not universally known and notorious that it did exist so that there is not the least pretence to plead Ignorance in this case.

I must at the same time observe to your Lords that this regulation of the Council was very prudent and just and if it had been adhered to would have prevented all the confusions which have since happened in this Province but instead of this some leading men in the Province and officers of the Lords Proprietors convened together and by a long Train of Artifices and threats prevailed upon the weakness and necessities of Sir Richard Everard (thō it was never pretended that he had any more power than his predecessors to Grant land) to sign Patents along with the Council upon various pretences which he continued to do during all the rest of his administration in a most open carefull manner. These Patents were drawn up in form and signed and sealed with the persons names the number of acres the description of the Boundaries and the Sums paid for 'em [left] in Blank and remained so in the secretaries office from whence they were issued and disposed of and filled up just as the proprietors officers thought fitt I have seen [many] of them myself since I came into the Country in private persons hands entirely blank and have been credibly informed that Bundles of them at a time have been hawked about the Country but to be more particular besides the Grand original Defect that they were issued by persons who not only had no power to grant them but were universally known to have no power I shall only remark the following defects in most of them 1st. These were taken out of th Office with the Date the persons names the situation of the Lands, number of acres and purchase money. Some or all of those left in Blank 2. They were not preceeded by regular surveys returned into the Secretary's Office 3. Many of them their dates filled up since his Majesties purchase took place 4th. The original Records from which they are supposed to be extracted plainly evince them to be fraudulent For upon Inspection it appears that many Patents of the date of 1725. 1726. & 1727. are there placed after Patents of 1729. 1730. and this not in one or two places but in many thō the pages of the book are regularly marked and no transposition appears.

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Besides the defect above named the bad consequences attending the confirmation of those patents ought to be considered, of which I shall only mention two at present 1st The oppertunity it gives people of possessing what Quantities of land they please and of claiming what persons lands they think fit proper as the number of acres and dates have been and perhaps are still in their own power, for there is no knowing what number of them may still remain not filled up 2ndly the possessors of some of those Patents have persuaded some of the Crowns tennants in the other County to give up their own tenures of 2s per 100 acres and take out these new Patents at 6d and 1s per] 100 acres as if they had sworn the distruction of the late Lord Proprietor now the crown Receiver, one of the principal Reasons why his Majesty purchased this province was that his subjects might possess land without any purchase upon paying an Easie Quit rent.

But if people may meerly by filling up a piece of Blank Paper call what lands they please their own they easily oblige strangers to buy of them and so intirely frustrate his Majesties Gracious Intention if one may judge of what is future by what is past.

The only appearance of argument thō by no means a solid one I have heard in favour of such of these Patents as are dated before January 1727 is the following clause in the Act for the sale of the two provinces. Except all such Tracts of land Tenements and Heredeterments, as have been at any time before the 1st of January 1727 Granted or conveyed by or comprized in any Grants, Deeds, Instruments or conveyances under the Common Seal of the said Lords Proprietors either in England or the Provinces aforesaid. This in the opinion of the Possessors of these Patents ratisfys all their Patents prior to that Date, But I can never be of opinion that this Act in any part of it ever intended to convey any Grants Deeds Instruments and conveyances which were originally Null and Void, and which they might date whenever they pleased especially when it is declared in the very next Clause that this Exception shall not extend to nor include, any forfeited Grants nor any Rents Services, Signiories or Rights of Escheat reserved upon or Incedent to any such Grants, after seriously considering the premises and attentively perusing my 39 Instruction which condemns most of them and other of my Instructions which his Majestie's service will not allow me as yet to publish and which includes all of 'em I did by and with the advice and consent of his Majesties Council erect a Court of Exchequer and afterwards issue a Proclamation by which I declared my Intention of ordering the Attorney General to vacate all those Patents and at the same time to allow innocent and fair purchasers the liberty of surrendering these

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Patents to me and taking out new ones according to His Majesties Instructions upon which the Gentlemen principally concerned in these Patents did represent unto me that they conceived I understood my Instructions in too rigorous a sence and if they could be heard at your Lordsps Board they might meet with more Indulgence I readily consented to their Request and have sent their memorial along with this Representation which as a faithful and sworn servant of the Crown I thought it my duty to lay before your Lordships that you might see at one view what can be said against as well as for these Patents and upon the whole beg the favour of your Lordships favour Commands what shall be punctually obeyed by

Your Lordships most, &c.,

Recd August 2nd 1735.
[To the Board of Trade.]