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Colonial and State Records of North Carolina
Memorandum by John Sharpe concerning the appointment of clerks of court in North Carolina
Sharpe, John
August 12, 1741
Volume 04, Pages 577-582

[B. P. R. O. North Carolina. B. T. Vol. 11. B. 56.]

Mr Sharpe for an Act on behalf of Nicholas Rice Esqre Secretary to His Majesty's Province of North Carolina beggs leave humbly to submit to the consideration of the Right Honourable the Lords Commissioners of Trade and Plantations the following Observations on and Objections to an Act passed in the said Province The Twenty first of August last Intituled an Act to appoint able and skilfull Clerks for the several County Courts within this Province and for the better securing and safe keeping the Records of the same.

The said Nicholas Rice is by his Patent entituled to the Office of Clerk of all the Courts in the said Province and agreeable thereto he and his Predecessors to the time of passing this Act have constantly and within any Interruption or claim to the contrary appointed Clerks to the respective County Courts in the said Province and who have constantly officiated as such to the General Satisfaction to the said Province and without any Complaint having been ever made against them.

But the said Nicholas Rice having had the misfortune to incurr the Governors displeasure thō without any just cause given he was some way or other to feel the weight of his resentment—And with that view in August last the above act was passed—But which it is humbly hoped hath no foundation to support it either in the Preamble or in the enacting part of it.

The Preamble consists of the 5 following Facts vizt

First. That great complaints have been and are daily made by the Inhabitants of the said Province that the Records of their respective County Courts are irregularly kept or wholly neglected to be kept.

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Second. That this is occasioned by the County Court Clerks not being obliged to reside in their Countys.

Third. That several persons have been appointed Clerks not sufficiently qualified or capable of such Employment.

Fourth. That great complaints have also been made that several Clerks of the County Courts in the said Province have enacted very exhorbitant and other Fees than established by the Laws of the said Province—and

Fifth. That this was occasioned by their buying and paying large sums for their commissions or appointments more than the profits would bear to the great grievance of the People.

Now every one of these Facts are meer Invention and surmize calculated contrary to the Truth to deprive the said Nicholas Rice of the benefits intended him by his Letters Patent and to take from him the enjoyment of this considerable branch of his Office which he and all his Predecessors had constantly before held and enjoyed.

As to the first Fact, the Records of the respective County Courts have been always kept with great care and regularity and no complaint was made to the Assembly or otherwise on this head or any the least proof given in support hereof thō it is so formally recited in this Act And the truth of this will appear on the face of the Minutes of Assembly now before your Lordships Besides however this if true might require to be redressed in a proper way It would not be a foundation for an Act of this kind to divest Mr Rice of these Offices and if it shall appear no complaint whatever was made on this head to the Assembly, It is hoped that will be a full confutation not only of this first part of the recital but likewise of the

Second Fact alledged in this Preamble which is consequential to and dependant on the first. But this part of the Preamble is intended to strike at two particular persons one of whom who has one of these Clerkships is Deputy Secretary to the said Nicholas Rice and has been Deputy Secretary to the Province for seventeen years past without any complaint against him and the other who has another of their Clerkships now is and has been for several years Clerk of the General Court and who are both excellent Officers and by much the most experienced and capable to officiate in places of this kind of any persons in the Province—And they have always taken such effectual care to have proper persons attending at their respective County Courts when they have happened to be absent that the Business of their respective Courts hath not at any time suffered when they have happened to be absent which has been but very seldom they having generally officiated at their County

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Courts in person as all the Clerks to the other County Courts have always done and no complaint was ever made on this head or any mention made of any the least Inconvenience arising from it till it appeared in the Preamble of this Act. Besides a regulation of this kind if necessary might have been made without taking the offices themselves away from the said Nicholas Rice.

The Third Fact is equally groundless with the proceeding—The said Nicholas Rice having always appointed to these Clerkships the ablest and fittest persons he could find and those who were in all respects best qualified to discharge that Trust and no complaint was ever made to the Assembly on this head nor any the least proof or evidence in support of this charge laid before the House as will fully appear from the Minutes of the Assembly transmitted to your Lordships notwithstanding it is thus possitively affirmed in the Preamble of this Act—Neither if this was true It would be no foundation for an act of this kind thō it would require to be remedied in a proper way.

The Fourth Fact has no better foundation for its support than any of the preceding No complaint having been or any proof whatever not so much as a single instance laid before the Assembly of any Exaction or any other Fees being taken by any one of these Officers than those established by Law as will likewise appear from the Minutes of the Assembly now in your Lordships Office Besides this is not sufficient to support so severe a Law as this—The Law of the Land is open to punish such Acts as these and there is now [no] Court or Jury but will go every length in their power to punish them and the partys thus imposed on will be always ready to apply to 'em for relief—But no action was ever brought for Extortion or Exaction against any of these Officers nor a single instance of any thing of this kind laid before the House—And therefore Mr Rice notwithstanding what is thus unwarrantably asserted in this part of the Preamble hopes he may be allowed to insist they have none of 'em ever been guilty of it If they have it has never been done with his Encouragement connivance or knowledge.

The Fifth Fact is equally groundless as the rest there having been no complaint made or any proof whatever laid before the House to support it—And in Truth Mr Rice hath never taken from these Officers more than the customary consideration and acknowledgement usually taken by all former secretarys—notwithstanding the great Increase of Business in those Offices of late years—And what Mr Rice hath thus taken is so very inconsiderable as not to be worth mentioning hardly taking, so farr is it from being a means or occasion of the Clerks exacting or taking exhorbitant Fees—Besides this if it called for it, might have been remedied in a more proper way than by passing a Bill of this kind.

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Mr Rice solemnly averrs he never had any Complaints made of any of these Clerks save only as to one of 'em and upon Mr Tart a Member of the lower House representing it to him he immediately displaced such person and put a new one in his stead.

And whoever has the superintendency or appointment of Under Officers can do no more than supply what is wanting and rectify what is amiss so soon as he is informed of it which Mr Rice never refused doing But so far from it That upon a meer surmize and loose Report without any formal complaint made that some County Clerks were negligent of their Duty in one particular He presently issued and sent circular Letters to the Chairman of the several County Courts recommending to them to have a strict eye upon the Clerks that they did their Duty and desiring to be informed from them when the Clerks failed therein that he might take such order in relation to such Clerks as should be found requisite to redress any grievances complained of

If the Preamble be without foundation the enacting part which is wholly built upon it must fall to the ground but there are many other and very material objections to this act.

First. As it affects the Prerogative and the Rights of the Crown For as Mr Rices is a Patent Place given by the Crown This Act is for the Assembly to tear these places out of the Gift of the Crown and to vest the disposal of 'em in themselves An attempt which the Plantation Legislatures have never yet been indulged in and should they carry it in the present instance the Patent Officers of the Crown in all the other British Plantations would soon feel the weight of this President. All the Patent Officers who are generally Gentlemen who go from hence being in general looked on with a very envious Eye by the Planters.

It is likewise apprehended that the Legislatures in our Plantations have no power by any act of theirs to vacate a grant made by the Crown and passed under the great seal of Great Britain and that this and every other act that attempts anything of that kind is a nullity in itself and void ab Initio It not being a matter proper for the Exercise of their Power.

Second. It is not the Province of a Legislative Power to deprive any subject of an Office or Freehold by an extraordinary Act to be passed for that purpose. This ought only to be done in the ordinary course of Justice and by the Rules of the Common Law unless in Cases of the most flagrant and crying nature and where Justice cannot be had in the common and ordinary way and then it ought only to be exercised by the Legislative Power of Great Britain

Third. If any Power of this kind could be properly exercised by a Plantation Legislature it ought to be exercised with the greatest caution

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The party to be affected ought to have Notice to defend his Property and to be heard by Council and Witnesses in his Defence and the Evidence on both sides transmitted home as was lately done in the case of Mannings Divorce Bill from Jamaica and a Clause ought to be inserted in the Bill giving the Officer an Allowance by way of Equivalent for the Office taken from him a Clause of which kind was indeed unanimously inserted by the Council thō rejected by the Assembly.

Whereas nothing of this kind was done in the present case nor any hearing had or any one Witness examined in the cause But the whole carryed on with a very high hand and passed as an act of meer power.

But these thō abundantly sufficient are not all the objections to this act, there remains still very strong and unanswerable ones. It being passed in direct breach and defiance of several of the Royal Instructions to the Governor For

Fourth. The Governor is expressly and in the strongest Terms commanded by his Instructions to protect the Patent Officers of the Crown in the enjoyment of all their just Rights and to give 'em all the countenance in his power and in case of any misbehaviour in the Patent Officers the Crown hath by another Instruction reserved the Inquiry into and punishment of that matter to itself and for that purpose the Governor is directed to transmit an Account thereof home to the Secretary of State and to your Lordships and if the Offence be of a flagrant nature the Governor is impowered in the mean time to suspend the Patentee security being first given to be responsible to the Person suspended for the profits if the suspension should be taken off by his Majesty. Which Instruction lays down the Rules for the Governors conduct with regard to the Patent Officers of the Crown and is wisely calculated so as to preserve both the Prerogative and Rights of the Crown and at the same time to secure the Rights of the Officer and to protect the subject from all imposition and abuse—But all these wholsome Provisions are broke in upon and overturned by this Act which plainly passed in open contempt of every part of this wise and necessary Instruction and yet this Instruction was insisted on in the Debate amongst the Members of the Council against passing the Bill.

The Governor is likewise expressly instructed not to assent to any act of an extraordinary or unusual nature wherein the Prerogative of the Crown or the property of the subject may be any ways affected without incerting a suspending clause to prevent its having any effect till his Majesty's pleasure should be known upon it—An Instruction which if the Governor had paid the least regard to it is impossible he could have assented to a Law of this kind which so very materially affects the Prerogative

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of the Crown and the Property of the subject—without incerting a suspending clause in it and which in the present instance seems as absolutely necessary to have been done as in any that can possibly happen and this Instruction was likewise particularly mentioned and insisted on in the Debate of the Council and a suspending clause insisted to be incerted in the act in obedience thereto

It is therefore hoped if there was no other reason for it than its being so directly passed in opposition to these clear and possitive Instructions that this act will be reported by your Lordships as proper to be repealed.

If the Patent Officer misbehaves in his Office the person injured has three ways of applying for releif—One by Action at Law—the other by Petition against him to the Governor and Council who if there be sufficient cause for it has power to suspend the Patent Officer and to transmit the Petition and Evidence in support of it home to his Majesty for his Directions upon it—And the third by Petition directly to the King in Council so that there can never be occasion for the Legislature to interpose in cases of this nature and whenever they do it is plainly done with an Intention to encroach on the Royal Prerogative

After having laid before your Lordships the above objections to this act it seems unnecessary to trouble you any further—I shall therefore only add in general that the Profits of the Secretary's Office which before were very small If this Act stands will be so reduced as to be unable to support the Office.

All which is most humbly submitted to your Lordships great Wisdom by

My Lords, your, &c.,
Agent to the said Nicholas Rice.

Mr Rice and Mr Moseley Members of the Council having entered their Protest against this Bill I begg leave to refer your Lordships thereto as entered in the Council Journals.


Received from J. Sharpe August 12th 1741.