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Colonial and State Records of North Carolina
Memorandum to the Board of Trade of Great Britain concerning the election of North Carolina General Assembly representatives
McCulloh, Henry, ca. 1700-1779
Volume 04, Pages 1156-1158

Observations in Relation to a pretended Act of Assembly passed at Wilmington in North Carolina. November 1746. Intituled, an Act for Ascertaining the Number of Members &c Most humbly submitted.

The Right Honourable the Lords Commissioners for Trade and Plantation

In the Preamble to the Act, it is untruly charged, that the Northern Counties have Assumed to themselves a Priviledge of Chooseing Five Members, without any Law, or pretence of Law to support such a claim, Although it was Evident from the first Constitution of the said Colony that the Precincts in Albemarle County allways had Five members to represent each of them, And that the Precincts in Bath County were Entituled only to two Members each, which will appear upon examining the Rules and Order, made at a Palatine Court 9th December 1696. [See page 472, Vol. 1—Editor.] And by the Writs issued by Governour Johnston, which plainly shews, that from the first Institution of the said Colony untill November 1746 they were deemed to have a Right so to do, And nothing can have more the force of a Law, than a Constitution so established, Continued and acted under for upwards of Fifty years.

That Albemarle County was formerly a Government in itself. And the Precincts being looked upon as a Nursery for the rest had accordingly a Privilege Granted to them of having Five Members each while the Southern Counties or Precincts (afterwards annexed to them) had only Two each; but as the Settlements there Increased New Counties were Erected so that in a little time the Representatives for the Southern Division will be more numerous than those for the Northern

It is also charged in the said preamble that the best Schemes for the good, and wellfare of the Province have been defeated by the Northern

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members; but although it is easie for persons guilty of an Exertion of Power to make a wrong and general Charge And to Impute Crimes to such as they intend to Injure yet it is not so easie to prove those charges to be true, for if the Northern Members have deviated from their Duty, that may be proved against them by the Minutes of the Assembly, And producing such Laws, as they would not agree to : And untill that be done no general charges made against them Ought to have any weight.

That the Governour having Transmitted the said pretended Act for His Majesty's Approbation ought to transmit at the same time the Minutes of the Assembly, which could not be suppressed with any other intent than to surprize, and induce your Lordships to believe that there was a full House at the passing of the said Bill whereas in truth there was not, although on reading over the said pretended Act it appears as if a proper number of Burgesses were present at passing it but when the Minutes of Assembly are inspected it appears thereby that only Eight members were present, when they satt as a House and that afterwards they having swore in Seven New Members proceeded to do Business. Although by the Constitution, and Constant usage or practice of that Colony (as well as most of His Majesties Other Colonies on the Continent of America) a Majority of the Members ought to have been present (which at that time would have amounted to Twenty Eight in Number) before they had a right to sitt and do Business, upon which it is proper to remark here the well known maxim in all Laws. That no power less than that which formed a Government can lawfully dissolve or annull it; And that as it is directed by the second Charter Granted by King Charles the second, that there shall be a Majority of the Delegates of the Freemen of the Province present when any Laws are to be Enacted. so in the present case the eight Burgesses who met together in Wilmington had not any power to sit as an Assembly and consequently that every Act by them done, was null, void and of no effect.

It is also proper to Observe here that His Majesty having by His Instructions strictly Commanded his Governour not to pass any Law of such an Extraordinary and unusual nature without First incerting therein a suspending clause, the Governour by having Acted Contrary thereto is guilty of a great contempt of His Majestys Order for if the Governour (as he ought) had incerted a suspending clause it would have prevented all those heats, Animosities and Broyles which naturally attend such an Extraordinary exertion of Power And further that as in this case the Governour had no delegated power to new modell or alter the Constitution, every act so done by him and the said Eight Burgesses, who assumed the name of an Assembly is utterly null and void in itself especially in

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regard that His Majesties Instructions are a standard, and rule of Government in the Colonies.

Therefore on the whole it is most humbly submitted whether an Act of this Extraordinary nature passed by a pretended Assembly who had not (as conceived) had any power to sit as such, And Assented to by the Governour, Contrary to His Majesties Instructions, ought to have the sanction of the Royal Assent and Approbation.