Newspapers / The Wilmington Gazette (Wilmington, … / Feb. 4, 1806, edition 1 / Page 4
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Continued f reft the Ji-st Tagf.' " ". more was necessary ; u Therefore, (they f sy) all t.'iie territories seas waters arid harbonrs, with thcir'appuftcnanccvly'm?, 8ic. are-the right and property of the-people of this state, to be held by them in sovereignty . Ti clause not only adds to the domain already late Xonls Proprietors or any of them, p This branch was added for;t!u; lame rea Ton that ho- fecond vr as, confideriog the Lords Proprietors pocflcd of pretogative power and privileges : and it, fhewa.too, thatif Lord Granville's rights had btfrn pre ferred; thole holding by grant under him vested, ill "ihe seaa, waters and harbour; JLy ,avc been; protetled by the provi- but it alsavestVihe sovereign command of the sWe jiv tlw; people. Jt appeal torme that .the convention i besides th,e. ascertaining the ... i . i it' i. ;.. i- ... limit? 01 me staie; naa inrec uujcei m ymw , one (Wa, to secure to the people the absolute 'cuard anrainst all usurpations of individual, and to compel them to hold their lands of the. "fctate ; aid the third was, to exclude all but the members ot tnat couecuve-.OQciy irom holding or "enjoying tbe property, of the soil. The latter object is perceived in the expres sion of the first clause and! think the .con 's Ventlon must have had their eye lipoii 'tiie bubject of alienage, a subject familiar" to -them; and,, next to sovereignty, one of, the , most important in a free state.' l am the. more convinced of this, when I consider the l.ist Saving clause m the section. .To what ' .I f .t. UniaM (U intvmlnrii lint 'jrlansewere it not to let in a certain descrip tion of aliens and foreigners ; who were ex cluded In the foregoing part of the section ? The very exception proves their exclusion, 1 and, shews the sense in which the Convention intended to be understood by, the property of xthi-soit. .. '..' v Next follows the first proviso, "Iri these word j, " provided ahvays, that this Declara tion of IVghts shall not prtjudge 'ny nation or nations, qf Indians, from enjoying such punting grounds as may have been, or hsre- after shall be secured to them by any former or future legislature of th'ti state." This proviso was, thought necessary because the Jnd'uns were riot considered as of the col lective body of the people, and tfere there fore excluded fitom enjoying any privileges touching tne sou,- uy tne ntst clause in me section, as were all aliens. The second pro viso ts in these voids, And provided also, that it shall not be construed so as to prevent the establishment of. one or more govern ments westward of this state, byconcertof the legislature." . This pro viio was thought ne- Cessary.because as thehmits of the state were fixed by a convention for that and other extra- crdniarv purposes ; no future legislature, con Ycned for ordinary puipqses would possess-' the power of diminishing the bounds or si termg the tlcmarKSuon by erc-crMg a new state ; and they saw that ere long such a I rhm.i- until.! nrnhjl.iV tjUB nlar" l rh lent of territory was verr great, ar.d a imtur nl barrier, dividing as it wrrr, the western from t!i cruitern part.pf tie state, would :d vays obstruct that mutual access and f.ce' t.Uercotiie, so'nccev.ary inthc saie c:t i rnetit nnd within the jirisiliction ot ti.r same l?gM.Uive body. The third and lrut prt viv) is in these words, " nd provided fur ther, that nothing hereiu contained, shall af fect the titles or j"Scsniuiis of itvliviaua's, liol lint; or c!t nin.; u-ider th? 1 iw liereto i '(. in firce" g'-wfs 'lerrtofoi- ninc'e by the l-ue King tlorge lUe thi 'd, or his pre dr esjrj, or the late lyrd Proprie or, or aiy yf t'u'iri " ! Mere. tiie Cunirntion spe ks of i i.livi J i il righ'.- as contradiitinguished f-i n s verr'nn piwer ; nj whence the ne-ce-'y r.fs.ivii; ii.li?i.hul rights, if it wis I itf !'; ! iitSj b'!y of the icdioi todrstroy fiti:' i'hts o-ily ? The convention, in fact, i t;j;.ne d'they hud dctroy-d a'l rights wheth-erp-jblie or prtvitr, exrrpl tliO'Cofthcpeoplc whi c.im'vjscd the collective body of their 0 n st te. ' Hut thinking that justice, polit y u l thj faith and diiity Tlhc state de.ti.md e l the p'oUrtion of oil individual and strirt ly privbte rights which hud been lawfully acquired, this proviso deemed ticccs aiy. To make the convnon ttvt , Jn which ti e Hate was then w.irmly engaged, as popular as poi'iblc, was th! Grt care of cur infant Cabinet; to that end every measure waspuf-T -lucdsihicli ttiidcdto fix the wavering; tor? f.nn the tlixin'cctett, and to brin? over at fniny n pptilblc to our standard. Pursim-i; this policy, and seeing that a general dutrrc tion ff indivkluat rights wouhl otify serve to rrritatc nn alreidy relentless fe, or a-!J rrtithtoliisaMrvs; tbe Conventionthought it eitpdient o except all indivhlu! privme rights lawfully arq'iirrd. ' Hut In doing this 1 cannot suppose tlirv intended to save luch I right the plaintilTs. , i-or.thc ticttcr tniferflsndin of this p ovif.i, let us diviJc it into thret branches. It prefcrvei the rights of indiridiiaK, l ol.firg vr chiming under the laws hrreto. fpre in force. The meaning of this, Ltar.rhisihit all the lands which bJ btcA appiotutcJ by imlivijuali UhU remiin f and nut Ik maleiho fubj-dl of entry If the tie, government, and all titlrl cl iiu'MJ.uli (nioncJ in any manner or tl'ree ly former law, wbeihcr ly pre. cmpiian, the t v( lim'Manoa, orothcr Wifc, fho' M rcmiin tsiaHv unaff fled, in .1 . . L V J. I . i ts urre manner as inoun no nici L"l Ri.Mi 'i:J betn rlcchrrl. ally. It f fki the r'uk'i of inJ'vi!''s h-1d- "K rr aiTi'r4 tinder the gratis tfrt. i t r ta U hs il e ta!C King Grore I It. n lis tie -UtclTrff. . Ihe ftnfe f this lti C -pj ran to be thi$-Kf l lrt tlisiilJ ie thsir ctxiir and be !J alTai ihy vrrri MfrVre I he trrUra tirt, n'tithilnii(ng tb ftrfon 'Unfef vr4)(rr 4,cfe Jo-tivldxahj, hf or tti mrd Isl Toll alt fitcrtf!ojf a .id UritJtial r.t'.'u. 7"flt rrilcrvrs ileiuhtiof lions ef the-fecond branch. As1 to him " t h c t tff ,""t h i branch would in that cfe have pcen ufcleli. And, as the expreflion "cqcs torbc LorJs Proprietpja; or any et :'btml asiby far the greaiell number of grants yS'jcrc.tfftied by the Earl Granville i anq asqe was, notwitniianaing ms reun-. oiiifliment to .King George II, failed and undViflood to be a. Lord Proprietor and did Tn fa pojfels, not' only the right of fubinfeudation and of efcheat ; but ma ny prerogatives and txtraorcHnary privi leges, and hadregu!arly kept up his office Tor granting out the lands in the tlift ricf, with the refervation of quit rents I can not belteve.ihat he was intended to" be left' out of the lift of Lords' Proprietors. I in fer, ,therefor, that h was not intended as one of thofe individuals mentioned in the lad provifo. This conflruOion, as I conceive, gives meaning aud conlUttniy to every part of the fettionj and a truest expoution never permits any,; part ot a flatutetobe filent, ii it can be made to fpcak. ;., Again, there are feveral rvlcs applicable to this fcclion w.hich tend tttrcuuhtm the conitruclion I have put upon it. It is a ruleot conftrticlion that a fla'ute which is made for the good of the public, ought, although it he penal, to receive an equita ble conftrucTioii ; ami if the words are obfeure, they fhall, for tlie fame reafou be expounded mo 1 Orongly for the pub lic good; in fome cafes the letter of an act is retrained by an equitable ciiflrudlion.; in umcrs n is eniargeu ; anu in ointrs the conftrudion'is contrary to the. let ter ; it is fa'd to be within the ' mean., ing becaufc it is within the mifchitf; Ahd in order to . form a right judg ment, whether a cafc. be wnhin the equity of a llaiute, it is a good way to fuppofe the law-maker prtfent, and that you have afked him this qtieltion ; Cid you intend to comprehend ihis' cafi I then you mutt give j nm fell fuch an a-.fwer as you imagine 17c, being an upright and rcalouablc man wou'd have done. 1 i would hot 1c undcrftooJ to exjirtfs a de fiie as led none; to ftrain the rules of ciki.fiiuclion ; b catift: fuch a dtlne onld te intemperate and the expiilli'Mi of it highly immp.f j aid becau'e.l think l.f j, it fen afc i rtls no luch fabterlute. On this aecout't, 1 do not ci up the e q'.iiy of this fedlion aaiLtl t ha Inter birrifthey comor, ihteiny very muM. ai is ilu letter. Now. it hc o.ieltton had , been put, according to the rule of con. drtifliop jufi mentit-ncd, I do hdiete that 1 tvery member cl the convention -ssoul 1 i have aid, they intended to dellroy hc tijihtk of thit piantiff" I thit.k fo, hecaue it was icafoiiabltf ami highly proper in it : fell ; and occaufe fuch hu been the tnc ral iititltifluiiding in this Ibte, ever fince the Uwdaration of Rights. At.othrr rule is, thit if a flattue le penned i'i dubious terms, nf.ije i a jull ru'e to conftrue by ; otjui tt nirwa It. qufidt is gbvcrnt-J by i.fag, and ' the meaning tf w.orda fpoken or wri'trn ouht lobe allowed as it has conflanily been taken to be. As far as there hat len any nfjgc in this cafr, it has t ivt id the coiillfi.clion I lavs j;iven. The fe land have been grsaitd by this Hate; thrrefuic thclruiflittue thought the plan, tilf'l rih'i dirltfd. Many recoveiirt have been had in Kitflincnt, upon the e- vidcucc of loch titles, and no dtfen Unt in the Stat fjas weU with'o the Eirl Gran ville's -didriel as elfewheri,-a' cain- tor any landi-lyin'g in fuch county, which had not beea granted by ihe-Cr'own of G'at Britain, or the Lords ProprietofS ot Caro lina, or any of tlierrtj in fee, befoie the 4th , day of July ,1776, or which hd accrued or iHould accrue to this State, by treaty . or conqucft.; -and- that every crfon or perfotis, and hts'or their, heirs &nl adigrjs, ; who, in tbtf office of the late. Jvarl Gran ville, or in the late 'public land pfficehad herttofore made, anjiatitry or eritrics.or who. fince the' death of :he. fald arl Granville had. pa&ftsd ,and aflually im proved any vacant. or unappropriated lands for which no. juftlclaim by entry in any office fliould have -been made, fhould be entitled, in-preference (call others, to en ter and obtain a grant or grants for the fame. - i ,i ' ': 'Y ' The provifions and exprefii ns .of this aft Ihew inconteftibly, that the Itfgiflature confidered the plantistV right veiled in the .State by the conftitution. And follow ing up he intention of the bill of rights, TaveJ all private Tights from tnryt but dclrined thofe of alien enemies to another fate j becaufe they were not afFciSed by the Bill of Rights, and coi;(tsjuetitly could not be confidered then as vacant or un appropriated lands. It may be afked, if the legifl iture fup poftd the piantiff 's tide divelleil from him bvlhe conllitution, which was adopted the 1 out ot IJecember, 1776, why tley made ! all jiis ungranted lands on the 4 h, of July preceding, the fubjeel of entry i The an- ' Twer is, that the Earl Granville's office had cealcd,, and his right to grant was at lcalt fufpended by -the revolution. Any grant, therefore, hetween the tirrie cf Tylpending his right, and the time of tak. ing it away abfoKitely , would have been conhdetcd as void. ... - Again, thi? Ugtflittire of which we)iave been fpeaking, and feveial fuccediye oncs ntidrtook to coi.fifcate the la' dsof n.any Britilh fubj-;cts by name,-ami generally, .all others coming within the defcriptiou of thole, but no where rxpttflcu the uamtf ot this plantifT who, ot all others, they would have named if they' had intended to include him, or jf they had riot belevcd his rijijht was already veffedin (he State' ' Tnefe acts fhew, that the opinion of thelcgiflatures, all private rights had been proieckil, or rather un-fTeclcd by the Ddl ot Rights j but that tne right now fi.cd for was not of that description. Experience, and a change of circumftances ii fluehced tl cfc legiflitures to adopt a policy dif ferent irom that which had been purfued by the convention they, therefore, de chrrJ the ffhtes of a certain delcription of perfons coohfeated and forfeited, wh'kh until then, it had been the policy of the Sta'e to prcferve. ' Niw, I admit, that if a leg'flatur'! un dertskes to !egi(lne upon a fuppofitious riht, which in I ait has no cxifltncc, the act has ro-lorce. It is r.ol the mere o pinion of a IcgiQjtiire-rthat a right had previoufly vefted, which makes it To, if there he no words in the aft declaratory ot the ripht and if there are, they only give it exigence from that moment : There fore, I would be nnderflood to mean only that the conflrnclion which I hive given the Dill of Rights, is that which prevailed foon after it as declared. It was r.ot contended, in argument, that if the plantiir was divrflrd by the Dili of Right, an Ir.qmft of i.ffice was nccefiary to vert the title in the State. Indeed there could be no grtund for fu-.h an argument, n.it even bxi there been any ground for it, j the entry law was, I think, equivalent to anom.e tMind. I he rcalons that were J urge-?, and wWi propriety too," igsinff al- cenhought ftit-r.er lo flueMhrrrhe Tjiidl. f lowing TkIi aneffett 10 the entry afli itn ty of Tucirgiantsl and lFe Courtiin flcad of callii g the plmtirT, il he had not ma mit a tuic in nimic.i agaio'i live wlo!c worUj, have fuffcrtd thefe rccove. rirs to be had, 1 his is esidci ce that the Courts ard lawyers of this fla'e tiid not' believe that fuch defence was tenable. Another rule is ihi Great regard ought, in conf! ruing a Uatnie, to be raid ; to the ron(truction, which the fagcs'of aw, wH into booui tns nmc or loon alter it was made, put upon it ; becaufe they were the bed able to judge -f the irntmlon of the makers ; and it is a max. im that tntttnptrtrtt txpfu'n tjljtrti. Jin in It'g 't. " t noti there wis no cxpoCtion given 01 tint bin 01 ngnis, loon alter it wit ' made, by the court! nt this (late; yt we Iw.w that fome of the fjgei Uw who lived at thai time, are yet living and . that tby entertain the opinion that the 'rUmirT 5:l u felled In the flue . by the Bill of Rlgli'i j fome trgird too fiuni'd he paid to the c.pin'ums of the Le. gifturrl iipon this Lhicflrarticulatr at thty were rompofed of the Tame men, ; in psrr, who reeiaica tne iHM ol Kimi. The Lrgifltuif, very fown alter tlie con. UttiiiKin was iotmcd optfntd clFres foeie. cciviu tntrtis ot claims fur lau ta ; and ceclstH, tbt aiy citizen truths enter Mj,Mij!,, holJ.njc.rdalmi.ii undiriU i vrith thcentr. taker tf an coumy with. i on the fitSje3 tf land" con h fcatcd, lofe their force when applied to the lands now in qucfiion. There, the lands whi:h were the fubjett of congestion and thofe that were , the fuVjed of entry, were, at leaf! co'.fitlered in argument, different lands. Heir,' the lands declared to be the proper tr of ti e Staieby the Dill of Rights, and thofe that ate pade fubjetl to entry, are tbe Tame. . - . I am row tn confider the fecond point made, via. yhether the planiiff! iij;ht tva confifcated. As my opinion Is filed upon the firfl point in the ciufe, very little nerd be fa id upon thil pan of the cafe. Indeed, a gre.t part of the matter ol this point, was anticipated in the Jail oneconfidtred. Dut I have, tvi doubt of thtfe two laclsi II r That t! fivetat legiCaturei which paifoil the cnnfifcitlnn ads, were fully impreirrd with the belief that th: right ef this planiiff was tirnroitf by the Ihll of KJghti, and thit il rrelote it wis .ufcltfs to include him in theicls i a I, Thit they Iricnded laxonlfcate, r ot ouly thofe whrfe rirres were raprt Sled, but all other Pritifh fuu- J1 who came wthti the tniichUi inttrd I to be remedied. Nov as the p'ant.ff, if he had not been afl ccltd by the Bill ot Ritln, would rA havelofl his title by the mere encit-n of ikfvute lrtflature that le had filofl it, wiilvHJt four txertfToa intljsa:), which in iUcK wouldcrtate the lofs ; fo, upin the Time reafnnrpg 1 tt.lght : bt utgt Jt that' If the rarit'IF i- twcis -he. Jr d-Jciiptiqn, apd i ,wnhin ib tntlchief -of she. curvfifcatuin ?c1s, he is jmluvtd 1. vhc 1 . rr .e...e ,.ti : n " ' . ll.lt Ktc r n fl 111 ti l.ut - II. . wli. rl.. was within the nukl-icf or noi ; or whe ther the convidlion hat bis Cif wa$o therwife-t provided , for,, wou'd repel the prcfumption of his betng mjilu.itd oecaoid h'e was vvt'hin the mifchitt, which is mofl ,-probatle, it is uonet'ffajy for, me to .deterntioe. , I ihaJitheteforeive 1 o o,t ; nion upon Mfc Nor. (hall I give an opr n loo upon the rnaiter of an- itrqttrfr of of- . ce ; becaue" ihere-was "no fubilantive poirit made upon il,- but cot-fid. ltd xnj as an acce(Try to the conhriatipr. acls. And this brings ltd" to he 3 ! 'Ant'9 namely : That the plajivtiff as d.i'a'u i 'by alienage to hold lands. Vu ; The Btiiifh.docf ttnes up-m tie Ll'ft , of ".alienage arc thefe.: Thty . dtpy tha rigllt. of.expatiiatiyfi becaute'jhe luhjift's allegiance is perpetifal andhcianfe'tt is .'uuJj '-. -to jthe Kit g in his natural cap.iciiy ; ht . they admit that (uch allegiance-to every in. tent, dm one, may he dtived. t or th-y hold that allegiance ahd pcctt clion art' ru 'ti proctil tid that, in thtfeafe of ihe U o ttd States, upon the difmemhermeni jf the colon'es from the mother co mit y., the dnttnaxi: .'became '.a'iehs ."to 'every in'tnt . but the capaclivof ' hoidi g:Ijt)(i$ : And becaufe the ptinciple he,re helil if, that a, fubjcl ?irhas ah ithcrent right 10 hod land ai d that fueh ..right., (hill endure as longas his al egiaiuc and obrdiunce fwh ch '.to thts.intent ift perpetual) fhall comiMipj. iio "change of place or circumftar.ces can dived him of that tight as was ruled iri Calvin's cafe. Dut 4hiy. admit tli.t ! e . p(lU are aliens to every litter Ar;d imleed, it 'would be a pe-fecl -'Tii-itvf it iri our goverr.mrnt to fny thai tven'the arte rtnti "are.yrr'.fijljyvla.wf h's .B;i:aqk jtty. And to my mind it wo.ild he e qually a!fuH to adopt the dill ii cl'mj t;. keii in CaKin'j 'cafg ; for that very ca(V, aud mi'ty, if not a oiheis upon fi t' I rre fubjeef, doellblifh the genera! priiu i;, ; that an atie) cannot hoi 1 land ; and- ihx for thelwll of refons rcafons uhuh p ply with all their rigour againlt h piea Tent 1 taint 'if.' Vet thev hold that a tit:,rt whole freedom trorn and independct ce of his m jcfiy has leen ackitowledncd; who ca'-novici any manner he bound to f iva him ; who is in no ay pritrcltd by him, but who has been ifec'artd out oMiTf protctlion; and who owes to him, 'in Jafl, . no faith, a ugiatice or rbed tn.e whatever, may hoiJbnl as a ful jicl ma do. -And that a futj.ct who, out of the moiiiti cf his mafler. has re ii quiflicd all clailij o7 trrrftpryot a dif.nembcred cou ny, and acknowledged the iikleptn.'et ceof the ciiircns thcreot, ard who but the o. thcr day was an alien enemy, and is vot compW-ely, al'en to the newly rrrikd j.o vernnxnt of futh difmerr.brred colon a id the citizens thertof, fhall ncverthuif., hold la.nd as a ci::tcn may do. Tlie principles of Ca'vin's cafo I svj been frequently attacked in tits cotm'ty, and I thit-k with much rrafun ; bt. r as thtfc ptintiplcs may be denied, and 'ho moiivcs-'wh'Cb induced the rtfoUnio' s of thecoiiit coidrmned, and (till the plain tiffin llis ciife b permittee', to hold, under the 6'h article of the treaty ot parr, confideriug him not otheiwife -rlivcllcd, I fhall leave the cafe to another and cnorea b'e txectitumer. I fliair f 01 bear to give any opinion t p- on the Cth article of the tcity of peatc, becaufe there has been a dlverfisy ol opi. nionn;Ofi it among the abteftlaw charac. tcrs in the United States ; becaufe I en tertain much 'otibt mvfclf: and betaufrr-'i. U is not tirctfljry in this cafe. 1 he lall point to be confidered is the acl of litr.itationi. lam cltarly of opinion that t'-e plair.tid il not barred by this acl but this onl.Mon I l on'y she cot fequence ot that whicii I delivered on ihe firjl point j for had 11 r.of been that "the plaintiff poir fie I prerogi, lives todilinguifh him from other indivu duals, 1 fhould hsve thought that his rhjif was not afTi.-fied by the Dill of Rib'S, I u thai he wa t atrtd by the aU of lin in, tions. It Is thcrefoie by rcafon cf hn prercgativet alnpc, that 1 iliink lura rot included in the iflj and not becsufe he parcelled out his lands and others held un der him. Confidenpg biro as a mere grantee of the ling, wnh the appuiicnin cci common to a fee, 1 cannot upon prin ciple, dilllngtiiCi Ms cafo from that of a. nether Individual, who holds by f I fit! coo ' Acrefjfurinllare, ef uncultitited andun , occupied land, and fin contr'yed io Ice rtmple 5C0 acrti thereof to different per fons, It fmitl parctli ihd in fuch cafe, the rtfht to the 5C0 acrci retained, might,, no doubt, f barred by the acl. When this aU wis made, it was the In tertionof the mikeri not to indodo th -lordi proprietor 1, at appeals very plainly from the preamble ard I mm tie Ktivaird orngnoi incaui ar,.s n airg ti rot bound by an act of Parliament, unltfi e" be nautJ ihrtcin by fpetisl ard patticst'ir
The Wilmington Gazette (Wilmington, N.C.)
Standardized title groups preceding, succeeding, and alternate titles together.
Feb. 4, 1806, edition 1
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