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Colonial and State Records of North Carolina
Memorandum by members of the North Carolina Governor's Council to the Board of Trade of Great Britain concerning a dispute in the Council
Rice, Nathaniel, d. 1753; Allen, Eleazer, 1692-1750; Moseley, Edward, ca. 1682-1749; Moore, Roger, 1694-1751
July 03, 1740
Volume 04, Pages 462-470

[B. P. R. O. North Carolina. B. T. Vol. 11. B. 49.]

My Lords [of the Board of Trade]

The Rights of the Council here having been greatly invaded and infringed by Willm Smith Esqre the eldest Councillor his lately assuming to himself a power or priviledge of giving a double vote on passing of severall Bills in Council (viz.)

The one for appointing a County Treasurer for the severall Countys therein mentioned and the other for erecting a village called New Town into a Town or Township by the name of Wilmington four of the Members of Council (viz) Nathaniel Rice, Eleazar Allen, Edward Moseley and Roger Moore Esqrs did in a most dutiful manner represent the same to his Excellency in writing in order to put a stop to such an Innovation not doubting but his Excellency would have done us all the Justice we had reason to desire but to our great surprise we could obtain no manner of satisfaction save only an order for Mr Smith and those of the Council who joined in supporting him in the exercise of that Power viz: Robert Halton Mathew Rowan and James Murray Esqrs to make an answer to our Representation, but these Gentlemen instead of such answer put in a counter representation altogether evasive and forreign to the matter in dispute containing nothing but invectives and unjust reflections in order to asperse our characters and to render us suspected to your Lordships as persons of Turbulent dispositions disquieting the minds of his Majestys subjects and perplexing his Majesty's Government here.

We therefore did not think fit to make any reply thereto seeing that to reply to such new matters as have no relation to the point in dispute would be to multiply papers without end.

But in as much as we have the Honour of serving His Majesty in Council and two of us likewise as officers of the Crown We humbly beg leave to vindicate ourselves to your Lordships from those unjust charges and recriminations lest our being totally silent may give some occasion to believe we are not altogether innocent of the matters charged against us.

As our Representation will in due time come under your Lordships consideration we shall beg leave to refer your Lordships thereto and confine

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ourselves only to answer such matters as are laid against us in their counter Representation.

The first charge is that “These four Gentlemen and their adherents took great pains to insinuate that all these transactions were null and void (meaning passing two Laws by Mr Smiths double or decisive vote) and that his Excellency could not give his assent to any Bills past in that manner and that if things were not carryed on according to our will and pleasure no business should be done at that session.

To this we answer and confess we did not only insinuate but openly as well within Doors as without protest against the passing these two Laws in the manner they were carryed at the Council Board and gave our reasons for so doing not in a secret and clandestine way but in the face of the whole Province and this we humbly conceive we might lawfully do and what the station we were in required of us—We were likewise then and are still of opinion that his Excellency could not assent to the two Laws in dispute because we apprehended he could not do it legally however we might find ourselves mistaken as to this point. The latter part of this charge we utterly deny, nor is it at all probable that four members of Council out of eight who it is plain had not interest enough to put a stop to the progress of a Bill which they apprehended to be an encouragement to Frauds detrimental to Trade and prejudicial to many private propertys should insinuate they were able to obstruct all business of that sessions, nor was it our Interest or Inclination to do so.

The next thing we were charged with is no less than making an insolent demand to his Excellency in our representation by desiring him to repeal the Wilmington Law by proclamation thereby discovering a violent restless and arbitrary spirit &c:

To this we answer, that we humbly conceive we had a Right as subjects of the Crown of Great Britain to Petition his Excellency in humble manner for the redress of any grievance whatsoever. And as Councillors it was our Duty to represent to him such matters of Fact as seemed to us distructive of the peace and tranquility of his Government and to advice him in what manner affairs of this nature and consequence might be rectified.

And althō our demand (as they are pleased to call it) is by them termed insolent, yet we hope it will appear to your Lordships we could not do less than make it part of our request that as those bills were never regularly or legally past the Council that he would notifie the same by his proclamation to all his Majesty's subjects in this Colony, to the intent that no person might exact obedience to Laws which had no Entity, but not to repeal a Law by proclamation which had regularly past as they

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suggest, and which we know very well a Governor has no power to do. Besides we could not, we were not at Liberty to suppose his Excellency would have ventured to give his assent to Laws passt in Council after this manner if he had been rightly informed of the state of the matter at the time it happened much less could we imagine he would go about to deceive the secretary of State &c: Your Lordships by an ambiguous declaration (which seems to insinuate as if there had been an equality of votes exclusive of the eldest Councillor when in truth there was not) so that we hope our representation will appear to your Lordships to be no more than an attempt to undeceive his Excellency in a matter of consequence we conceived to have been misrepresented to him and to desire he would be pleased to put a stop to the effects of such misrepresentations.

The next charge is our issuing possitive orders to the Collector and naval officer to officiate at Brunswick.

This charge if proved would indeed be justly deemed insolent, and arbitrary, it is against us all thō one of us was absent in New England at the time this pretended order was given.

To explain this matter we beg leave to make known to your Lordships that his Excellency having thought proper (before passing the Wilmington Law) to remove the naval officer from Brunswick the Port nominated by the Honble the Commissioners of the Customs for the Entry and clearance of Vessels and where the officers were ordered and did usually reside to the Town of New Town now called Wilmington about fifteen miles above and where no vessels of any large Tonnage can go without hazard. This removal was deemed a great hardship and imposition on the Trade of Cape Fear River, as it obliged the several masters of vessels to perform what in some places was not practicable or render their vessels liable to confiscation—A Gentleman one of the four who had some Interest in Trade having a vessel to clear for Great Britain did upon this removal and without the knowledge or privity of the rest write the following letters to Mr Murray a shop keeper and naval officer now one of the Council

Brunswick Nov: 3d 1739.
Mr Murray. Sir

I being informed by the Deputy Collector here that you do now act as Naval Officer, and as the snow Henry and Mary bound for Hull now lyes at the Port of Brunswick only for her clearance desire youle come down and clear her unless the Commissioners of his Majesty's Customs have been pleased to direct that office to be removed up the river, that

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distance from the shipping, and if that be the case beg youle be so good to inform me by a line and then I shall readily wait on you

I am Sir your humble servant

To which Mr Murray returned an answer as follows.

Newton 24th Novemb: 1739.

I received your letter desiring me as Deputy Naval Officer to come down to Brunswick to clear out the Henry and Mary of Hull I am to inform you that his Excellency has appointed me principal Naval Officer of this Port with orders to reside here and he bids me tell you that if either you think his Majesty's revenue, or the Interest of the Country is injured thereby you may represent it to the Lords of the Treasury of the Commissioners of the Customs who no doubt will give proper orders thereupon. I am Sir your very humble servant


In consequence of this letter Mr Moore did protest in form against the said Mr Murray and since sent home to the Honble the Commissioners of the Customs a Representation setting forth the great hardships and inconveniences laid on Trade by the removal of the naval office so far from the port by them established, and this signed by every master of a vessel then in port and for some time since who tis presumed will be thought proper Judges of the scituation of both places so far as relates to Trade and Commerce.

And whether this removal of the offices may not open a large Gap for the breach of the Laws of Trade the Honble Commissioners themselves will best judge when they shall be fully apprized of the matter.

This proceeding is what they are pleased to call issuing possitive orders to the Naval Officer and Collector to officiate at Brunswick, rediculous commands &c: how they have proved it any further than by their assertion remains still a Question.

The latter part of this charge of saying by our Emissarys we would turn out the Officers, his Excellency and Members of Council &c: requires no other answer than that we absolutely deny any part thereof.

Another charge against us is our attempt to remove (him) the Chief Justice appointed by his Majesty and to send for one of our own from South Carolina &c:

We are sorry Mr Smith should put us under the necessity of saying anything on this head so forreign to the matter complained of in our representation

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and to object it as a crime to endeavour to remove a person who by his behaviour had rendered himself so obnoxious to the people.

We do admit that several articles were exhibited to the Assembly against Mr Chief Justice Smith by several of the members occasioned by several complaints of divers persons who it was said he had greatly injured in their Liberty, Fortunes and Characters.

These articles were indeed of a most henious nature charging him in general with endeavouring in a most violent, arbitrary and illegal manner to subvert both the Laws of Great Britain and of this Province made for the preservation of the lives and estates of the people here and particularly that for divers years last past and contrary to the practice of all former Judges and contrary to the laws of this Province made for drawing of Jurors by ballot both in civil and criminal cases and in manifest violation of his oath which he took at entering into his Office, for the due observance of the ballotting law in particular, he had called Jurors to be summoned by venire without drawing the said Jurors by way of Lott or ballott before the venire issued, or after they were summoned and returned, as by the act was required, by means of which illegal proceedings of the said Chief Justice all the care taken by the Legislature for preventing corruption of Officers in packing of Jurors were intirely obstructed and defeated, divers criminals had been illegally convicted, condemned and executed all Judgements in civil causes liable to be revers't and the lives, libertys and propertys of his Majesty's subjects in this Province continually exposed to much hazard and danger.

With assuming to himself an equall power and authority of his Majesty's Court of Kings Bench at Westminster when criminals were convicted of capital offences and causing execution to be done on the bodys of such offenders by his own orders or rules of Court or precept, thereby depriving his Excellency of all opportunityes of extending his Majesty's Grace and Pardon to such persons as might happen to be real objects of Mercy which his Excellency is impowered to do by his Majestys Instructions and Commission.

With imposing excessive fines on trivial and light occasions and which indeed in themselves were no offences at all, and fineing people absent without ever being heard or called to answer by due process of Law.

With great extortions and exactions in taking exhorbitant fees three times more than was allowed by law and taking and extorting extravagant fees in criminal cases were none at all were due, giving divers instances in perticular of such extortions.

With extorting these fees in civil cases over again in one and the same cause from the same persons after they have been paid to his clerk and sometimes to himself.

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Promoting of suits and ordering a Writ to be filled up without the knowledge of the Plaintiff or his Attorney against any person under his displeasure.

Issuing executions without the request of either of the partys to the suits or their attorneys and concluding

That these articles were but a few instances of many of the Chief Justice his violent illegal and arbitrary proceedings for that his exactions and extortions were more burthensome than the general tax of the whole Country that every Court of the province was filled with his oppressions and that the people cry'd aloud for Justice at his Excellency's hands.

These articles being read in the house of Burgesses and proofs offered to be made of them all if the House would allow a competent time. Mr Smith had interest enough with the Members either by promises or threats, to get it limitted to three days thō some of them were of such a nature as not to be clearly proved without sending at least one hundred miles for persons papers and records which could not possibly be done within the time, however short as it was, the most of them we are told were made good by the time appointed and supported by plain and undeniable evidence notwithstanding which one of his friends moved that the articles might be declared false and scandalous, and another that they might be rejected, both of which motions were disagreed to and what Mr Smith is pleased to call rejecting them with indignation amounts to no more than a vote that the evidence then produced was not sufficient to induce the House to address his Excellency against Mr Smith.

But as to the charge of our endeavouring to remove him from his office we utterly deny to be true not that we were ignorant of the clamours of the people and their just reason of complaint but as we apprehended these complaints might one day come before us in Council we industriously avoided any manner of concern therein, the contrary of which lyes upon Mr Smith to prove since he has asserted it.

The last charge against us is an attempt to pass a Bill by which even the most cumbersome and inconsiderable commodities were to be rated at double their value for the payment of Officers fees, Parish Taxes &c. with the train of ill consequences attending it.

To this we answer That such a Bill was sent to the Council from the House of Burgesses and in both Houses had two readings is certain and as it was first conceived liable to many and great objections. However bad as it was there is very little difficulty we apprehend in proving that this very Bill was promised by Mr Smith as far as in himself to be passt by way of retalliation for the services to be done him with regard to the articles above mentioned and it is notorious that one Hunter a Member

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of the House of Burgesses on whom Mr Smith did chiefly depend for that service first brought this Bill into the House the commodities innumerated and the prices they were to be paid at in his own hand writing. But be this point as it will we conceive we had a right to vote for or against a Bill according to the best of our Judgement, and this, if it had received a third reading, might have been so amended as to have become serviceable to the people of the province and no injury to any person in it for which we humbly beg leave to offer our reasons the better to exculpate us from this extraordinary charge.

The paper currency of this Province at present consists of £52500, £40000 of which was issued in the year 1729 to be let out to Interest by the publick at such rates as that the whole would sink in fifteen years; The rest issued in the present Governours time (viz:) March 1734 to be sunk by annual Taxes for five years and the aid of a Deputy on Liquors which has never yet been complyed with althō the time is expired. But the money arising (thō applyed by law to this use) continually diverted to other purposes, and it seems it was thought necessary at this juncture to break thrō the only Law of that nature which remained unviolated, by making use of the interest of the money due by Law of 1729 to the payment of the Wages of the Assembly and to forbid the application of it to any other use, as by the Law itself may appear and this at a time when it might be reasonably hoped the Bills might grow in value in proportion as they had fallen; As the period for their being sunk by the Law for their emission approached; At a time likewise when the Governour here had but lately received orders to transmit to your Lordships Board a state of the Paper Currency of this Province the Several Laws by which it was emitted and how those Laws had been complyed with, which we shall not presume to animadvert upon but leave to your Lordships consideration.

By these notorious breaches of the publick Faith it is evident that the Bills now subsisting must inevitably fall even below the present valuation of ten for one sterling and in all probability continue falling till at last they may be reduced to no greater a value than so much wast paper whereby the persons who shall be so unhappy as to be creditors to the publick at the expiration of the time will run the risk of being defrauded of every penny they shall be possesst of must of consequence affect all publick Officers in their Sallerys and Fees and in the end reduce the affairs of the whole province into confusion.

It was indeed matter of surprize to us when we heard his Excellency intended to give his assent to the last mentioned Law which naturally led us (who had a share in the Legislature) to propose some method to

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remedy this great evil and althō we had not the least share in framing the Bill which is the subject of this charge, yet we were willing to lay hold of it at this juncture and by amending it, endeavour to fix the publick payments at one certain and determinate value which for want of Gold and Silver, could not be done any other way than by applying some of our most valuable commodities such as, Tobacco, Hemp, Flax, Deer skins to this purpose and retaining them at such a reasonable value as to answer the end proposed according to the practice of our neighbouring Collony Virginia.

This my Lords was what we contended for and this is what the Gentlemen are pleased to call the unjust and wicked Law which we attempted to pass. An attempt we humbly hope will appear to your Lordships to be no other than an endeavour as far as in us lay to secure the Province from some of the ill consequences that naturally flow from this strange violation of the publick faith.

And here we must beg leave to observe that the only Law past in this hasty session of Assembly were the two extraordinary ones which occassioned this trouble to your Lordships. That for diverting the fund for sinking the Currency and one or two more of no great moment notwithstanding A Bill for regulating the Militia of the Province of the last consequence at this time of an approaching war) had received two readings in each house and would have passt nemine contradicente had not his Excellency prorogued the Assembly imediately after giving his assent to these before mentioned, by which means Cape Fear River a part of the Province the most exposed to the insults of an enemy is for want of such a regulation left entirely defenceless his Excellency having never yet appointed any Officers for that part of the Province under pretence that for want of a Militia law such an appointment would be useless.

It has been the misfortune of this Province for some time past to lye under the character of a restless, factious, turbulent people, and as such to be represented at the several Boards at home It is this consideration we imagine has induced Mr Smith and his Associates to this very odd method of vindication and by mixing and involving our character with that unhappy one of the Province to render our representation in England of no weight.

In this case my Lords we hope we may without breach of modesty be permitted to say something for ourselves. That we are by no means that sort of men they would insinuate us to be, but that our Loyalty to his Majesty Zeal for his service and submission to his Government is equal to any of his subjects, we are none of us natives of the Province or except one, have lived in it any considerable time our fortunes brought into it

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and what we now possess much superior to those of the Gentlemen who have been pleased to take such Libertys with us and of value enough to engage us to take care by all lawfull means that they be not torn from us by a powerfull faction under colour of Laws passt in oposition to the constant Practice of the Parliament of Great Britain in such cases, to which we are allowed to assimilate ourselves as near as the circumstances of the Province will permit. All which is humbly submitted to your Lordships consideration by My Lords your, &c.,


North Carolina Cape Fear River July 3d 1740.


Memorial from four Gentlemen of the Council in North Carolina to the Board of Trade, dated at Cape Fear River July 3d 1740—Complaining of Mr Smith the Eldest Councillor and three other Members of that Board, who join in supporting him in the exercise of a power, whereby the Rights of the Council there have been invaded and infringed.