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Colonial and State Records of North Carolina
Minutes of the North Carolina Governor's Council
North Carolina. Council
May 22, 1740
Volume 04, Pages 448-453

At a Council held at Wilmington this 22d May 1740.
Present His Excellency the Governour.
The Honoble Will Smith Esqr Member of Council
The Honoble Robert Halton Esqr Member of Council
The Honoble Nath Rice Esqr Member of Council
The Honoble Edward Moseley Esqr Member of Council
The Honoble Eleazer Allen Esqr Member of Council
The Honoble Roger Moor Esqr Member of Council
The Honoble Math Rowan Esqr Member of Council
The Honoble James Murray Esqr Member of Council

Read the Representation of the Honoble Nathaniel Rice Eleazer Allen Edward Moseley and Roger Moor relating to a Bill for erecting Newton into a Town by the name of Wilmington which is in the following words Vizt

To His Excellency Gabriel Johnston Esqr Governour Captain General and Commander in Chief in and over His Majestys Province of North Carolina

The Humble Representation of Nathaniel Rice Eleazer Allen Edward Moseley and Roger Moor Esqrs four of the members of His Majestys Council of the said Province Sheweth

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That the Rights of the Council having been greatly invaded and infringed by William Smith Esqr the Eldest Councillor at the last sessions of Assembly held at Newbern. We think we cannot be too early in taking the first opportunity. We have had to represent the same in Council to your Excellency as well that we may discharge our trust and duty to His Majesty as to preserve the good agreement that ought to subsist between Your Excellency and all the Members of His Majestys Council and between the Members themselves.

We therefore beg leave to represent unto your Excellency that at the last Sessions of Assembly two several Bills amongst others were presented to be passed in Council the one for appointing a Treasurer for the several Countys therein mentioned the other for erecting the Village called Newton into a Town or Townships by the name of Wilmington and when the first Bill was put [to] the question four of the Members Vizt Nathaniel Rice, Eleazer Allen, Edward Moseley and Roger Moor were against the Bill and voted in the negative and four for the Bill Vizt William Smith Robert Halton Mathew Rowan and James Murray and voted in the affirmative there being then an Equality of votes four being [against] the Bill and four only for it the Eldest Councellor inclusive the Bill was lost because the affirmative and negative were equal and in that case Semper Presumitur pro negante. But William Smith Esqr the Eldest Councillor finding the Bill was lost assumed to himself a power or Privilege of giving another vote as oldest Councillor or Chairman which he was pleased to call his casting or vote and so gave two votes at one and the same time for one and the same Bill Vizt one vote as a Councillor and another as eldest Councillor or Chairman. Whereupon the said four members who were against the Bill entered their Protest against the manner of passing the Bill which Protest they now lay before your Excellency.

That when the Wilmington Bill was presented to be passed the said four Members who were against the County Treasurers Bill did likewise vote against the passing the Wilmington Bill in the same manner and the other four Members voted for its passing the eldest Councillor as before inclusive and making one of that Equality so the Wilmington Bill was likewise lost for the reasons aforesaid But the eldest Councillor again assumed the like power or privilege of having two votes one as a Councillor and another as Eldest Councillor or Chairman and so gave two votes at one and the same time for one and the same Bill like as before and also Insisted that he had the right to direct how the entries should be made in the Indorsements and Journals and after this manner these two Bills were said to be carried in the upper House whereupon we

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did protest both against the manner of passing the Bill and against the Bill itself for the reasons mentioned in the said protest which protests also now lay before your Excellency

We therefore beg leave to acquaint your Excellency that we look upon these proceedings of the Eldest Councillor or Chairman to be the greatest Innovation and Infringment that were ever made upon the privileges of all the rest of the Members of His Majestys Council of a dangerous tendency and destructive to the Rights both of ourselves and of all that shall succeed us seeing the exercise of such a Lawless Power may be made use of as well when there is a lesser number of His Majestys Council as when there is a greater and as well in the negative as the affirmative and which did accordingly happen at the same Session. We do conceive that such a power as this was never known to have been exercised in any of His Majesty's Plantations or Dominions for if we may be allowed to compare small things with great We may venture to affirm that the Lord Chancellor of England who is Speaker of the Lords House did never assume a power of giving one vote as a peer and another as Speaker nor did ever the Speaker of the Commons House give one vote as a Member of the House and another as Speaker or a Chairman of a Committee give one vote as a Member of that Committee and another as Chairman of the same Committee which as it never happen so it cannot happen in the present case unless it can be supposed that there may be a plurality of voices altho' there be not a Plurality of Persons

We do therefore humbly insist that the eldest Councillor has no such rights either as Eldest Councillor Chairman or President for as Eldest Councillor he can have but one Vote no more than the Youngest Councillor at the Board. If he assumes the right or Quality of a Chairman he has no right to Vote at all unless there first appear to be an Equality of Votes exclusive of the Chairman when and not before he may give his vote as a Chairman. And with regard to the presidentship. We have considered your Excellencys paper or Declaration which you were pleased on this occasion to deliver into the Council Board signifying that as You had been informed by several of the Members of His Majestys Council that upon an Equality of Votes upon any Bill treated of in that House It was contraverted [whether] the President of the Council when they sat as an upper House had the casting Vote, that Your Excellency would always reckon and look upon all votes resolutions and Bills passed in the Upper House by the decisive Vote of the President in case of equality of Votes as proper Legislative Acts of the upper House and give your Assent to such Laws as properly regularly and legally passed which Declaration your Excellency was pleased to order to be inserted

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in the Journals of the Council to be transmitted home as 'tis there said to the Secretary of State and the Board of Trade. By which paper or Declaration We imagine Your Excellency pre-supposed that there was an Equality of Votes exclusive of and before it came to the President's Vote as your Excellency is pleased to direct the eldest Councillor so that either Your Excellency has been misinformed or if Your Excellency has been before rightly informed of the State of this Case then your Excellency does allow that the President (as your Excellency stiles the Eldest Councillor) has a right to vote once as a Councillor and then as President. But with all Submission to your Excellency the said William Smith Esqr thō he be eldest Councillor he is not President of his Majesty's Council nor can he take upon him to act as such till by the death or absence of the Governour from this Province it devolves upon him In that case by His Majesty's Instructions he is [to] take upon him the administration of the Government and is to execute all the same powers and Authority as are given to your Excellency. He then gives the final Sanction to all Laws tendered to him to be passed by his Majesty's Council and Assembly or gives his Negative when so tendered as he sees fit and pro hoc tempore he ceases to Act as one of His Majestys Council and can no longer give his Note as a Councillor no more than the Governour himself so that it never can happen uno et eodem tempore or uno et eodem Casu that he can vote both as a Councillor and as President.

We are therefore sorry to find that in a matter of such importance both to your Excellency and the Council your Excellency should vouchsafe to receive your information on this occasion from some of the Members of the Council without Doors and not permit the other four Members of His Majestys Council to read or lay their Journals before you within doors which they offered to do at the time of your Excellencys delivering in the beforementioned declaration in order to sett your Excellency at rights in this matter and more especially that when one of His Majesty's Council besought Your Excellency that Your Excellency would explain yourself whether your Excellency meant the Eldest Councillor inclusive and making one of that Equality or exclusive Your Excellency should give them no other satisfaction than to return for answer that you did not come there to debate or to that purpose and then immediately withdraw.

We did further hope that tho' Your Excellency might think it not advisable to be present at the debate of Bills in the Upper House to the Intent that there might be always a full and free debate of all Bills there depending and least your Excellency's presence might be supposed to

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Influence or over awe any of the Members in such their debate yet that Your Excellency would have permitted them when they desired it in Council to have given Your Excellency such Information and to have lain such matters before you with relation to the present Dispute as the Duty they owe to His Majesty and the regard they have for Your Excellency obliged them to do and likewise to indicate their rights and justify their conduct at all times when need requires it. But since we were not so fortunate as to be permitted at that time to make known these things unto your Excellency We then determined to reduce them into writing and to have layn them before Your Excellency but the Rapidity with which the Wilmington Bill went through the house the sending down that Bill to the Lower House without the knowledge of the Members of the Council that were against it the unexpected tender of the same to your Excellency to the Speaker and the Lower House for Your Excellencys Assent the Prorogation of the Assembly and your Excellency's departure for the Norward soon after prevented our doing it till now. As we have the most tender regard for your Excellencys honour We have avoided making any application or representation to the Crown on this occasion not Doubting but your Excellency without delay will do all the Justice we have reason to desire from Your Excellency. Wherefore we humbly hope your Excellency will be pleased to declare that the Eldest Councillor either as Eldest Councillor Chairman or President at no time either had hath or ought to have any more than a single vote in the passing of any Bill or Bills or any other matter debated in the Upper House of Assembly or Council and that his assuming to have a right to give one vote as a Councillor and another as eldest Councillor Chairman [or] President at one and the same time and in one and the same case is a great Innovation and Infringment on the rights of the rest of the Members of the Council and Contrary to the rule and order and that your Excellency would be pleased to cause the same to be entered on the Council Journal to prevent any further confusion before they proceed to any other Business and in regard that the before mentioned Bills did ever regularly or legally pass the Council that your Excellency would Issue your Proclamation declaring the same have not nor ought not to have the force or effect of Laws and requiring all his Majestys Subjects in this Province to pay no regard or obedience to the said Bills or either of them and that Your Excellency may be rather be induced so to do and as these Bills in truth never were passed by the Majority of the Council as they ought to have been. We think we are not too late to advise Your Excellency that in our humble opinion the Wilmington Bill is highly Detrimental to the trade and Shipping of this Province Injurious
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to private property destructive to the Libertys of the Inhabitants that do at present or may hereafter reside at Newton or Wilmington and (as we conceive) contrary to many of His Majestys Instructions to Your Excellency All which We humbly beg leave to lay before Your Excellency not doubting but we shall be always found what we desire to be esteemed

May it please your Excellency Your Excellencys most faithfull Councillors and obedient humble Servants


Whereupon it was Ordered That William Smith, Robert Halton, Mathew Rowan and James Murray Esqrs have a Copy of the said representation delivered them and that they do on the first Tuesday in June next deliver in their answer to the same to be transmitted together with the said representation to the Board of Trade under the Seal of the Province.

Read the Petition of Robert West junior of Bertie County showing that he hath been in possession of two hundred Acres of Land lying in the said County for upwards of twenty one years adjoyning John Harwoods Line proved by the Depositions of Thomas Ashley Joseph Shilsharp and Mary his Wife and praying the same may be enrolled in the Secretary and Auditors Generals Offices

Granted in the same manner as the foregoing Petitions