The North Carolina Historical Review


                      The Sheriff In Colonial North Carolina
                                By JULIAN P. BOYD

Of the several factors at work in colonial North Carolina in the process of
fermentation which was to prepare the public mind for revolution, one of the most
important was the effect on the government of the colony brought on by continual
antagonism between the ruling class on the one hand and the officials of the crown
on the other. This antagonism lasted throughout the period of royal control, and
found constant expression in the frequent conflicts between the legislature and the
royal governors over such economic and political questions as land, fees, money,
and courts.1 One of the most dependable bulwarks on the side of the colonists in
this struggle proved to be the county court of the justices of the peace, together
with the small ring of officials attached to this court. For, as a general thing,
the officials of the local governmental units belonged to the ruling class and
exercised a controlling influence over the legislature. One of the most important
of these local officials was the sheriff. The part he took in the political
struggle going on in the colony was one of great importance. The influences which
were at work through the sheriff, the politics of his office, his position in the
colonial scheme of things, and his effect upon the royal government in North
Carolina are some of the problems to be discussed in this paper.

There was probably no other officer in the colony, and certainly there was none
under the jurisdiction of the county court, who exercised such plenary executive
and administrative powers as the sheriff did. He was not only the executive officer
of the county court, but, in theory at least, the representative of the crown in
the county, just as the sheriff in England was. As a peace officer of the county,
the full right of posse comitatus was vested in him.2 He also had important fiscal
powers, being the collector of taxes for the colony, the county, and the parish. He
was master of elections for members of the legislature and the local vestries, and
throughout the colonial period exercised a growing influence over elections and
over the legislature. He acted in most counties as vendue master, and possessed
important powers in that office. Such offices made the sheriffalty a position of
commanding importance in the county, and caused it to be the prized bit of
patronage at the disposal of the county court.

It is also equally true that there was no other officer who made efficient royal
government impossible quite so much as the sheriff did. Generally speaking, he
impeded all effort at a sound fiscal policy. He frequently misappropriated and
embezzled great quantities of the public money. He was a controlling factor in the
elections, and at times returned the person of his own choice rather than that of
the electorate. His influence was felt in nearly every phase of colonial life: it
was even claimed that he retarded missionary endeavor by his lax and dilatory
methods of handling the duties of his office.3

The office of sheriff, however, was not a sinecure, even at best. Jails were very
insecure in almost every county in the colony.4 The criminals were hardened and
desperate, and at times openly flouted the law. Even when captured and placed in
jail, they could not be kept there: escapes and jail deliveries were common.5 Riots
and slave insurrections were frequently threatened.6 And what probably disturbed
the sheriff more than unsettled conditions of law and order was the opposition
which he met with in the collection of taxes, and the consequent reduction of
commissions.7



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                    THE ESTABLISHMENT OF THE OFFICE OF SHERIFF

It was not until 1739 that the office of sheriff was created in the colony. Prior
to that time, the duties which the sheriff exercised were vested in the provost
marshal of the colony and his deputies, usually one in each county. The provost
marshal of the colony was appointed by the king, was paid out of the public funds,
and collected certain fees fixed by the legislature for himself and his deputies.8
The deputy marshals in the various counties were appointed by the provost marshal
for the colony,9 usually with a certain sum being stipulated in the commission
which the deputy was required to pay the provost marshal annually for the office.10
The deputy marshal was the executive officer of the court, and was obliged to
execute all writs, warrants, executions, and orders of the court.

The important change in the office which took place in 1739 was not simply a change
of name, but a change in the method of appointment. The old method whereby the
office was farmed out through several steps, from governor to provost marshal to
deputy marshal, and perhaps to several sub-deputy marshals, was abolished and the
system was theoretically placed more under the control of the governor. The sheriff
was nominally commissioned by the governor, but in actual practice the appointment
was in the hands of the county court. Therein lay a very significant fact: the
creation of the office of sheriff was evidence of the growing political power of
the county court, and was the direct result of a popular demand for the
establishment of the office.

The first notice of any agitation for the creation of the office of sheriff is
found in a letter from Governor Johnston to the Board of Trade, in which he points
out the impossibility of collecting the quit rents, if allowed to be paid in
commodities, without establishing the office of sheriff. "“There are," he wrote, "a
thousand inconveniences in this wide extended country for want of sheriffs and the
people are strangely bent on having them established by law."11 The popular demand
prevailed, and in 1739 the General Assembly passed an act entitled "An Act for
appointing Sheriffs in the Room of Marshals of this Province, for prescribing the
method of appointing them, and for limiting the time of their continuance in
Office, and directing their Duty therein, and for Abolishing the Office of Provost
Marshal of this Province."12 The preamble of the act showed it to be the result of
a popular demand:

    "The Office of Provost Marshal hath been found to be very inconvenient in
    this extended Province, the Deputy Marshals not only neglecting, but
    frequently refusing, to do their duty .... which hath occasioned great
    Murmurs and Discontents among the Inhabitants of this Province."
The act gave the control of the appointment of sheriffs to the county courts by
providing that in every precinct13 in the colony the court should recommend three
persons "as they shall think most fit and able" to the governor, who was empowered
to select one of the nominees to be sheriff for the next two years. A limitation
was placed upon this nominating power which gives evidence of the control exercised
by members of the county courts over the legislature; namely, the justices of the
peace could not nominate a person to act as sheriff who was not a duly qualified
member of their court. The sheriff, however, was not permitted to act as a Justice
or sit in the quarter sessions during his term of office. The act further provided
that the sheriff should give bond to the king in the sum of at least five hundred
pounds sterling, and that if any person nominated to the office refused to accept
the appointment, he should thereby forfeit eight pounds proclamation money. If the


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county court refused to nominate three persons for the office, the governor was
empowered to nominate any other justice, or anyone whom he might then appoint a
justice, to fill the vacancy. The governor also had power to appoint in case of
vacancy by death. This act would have abolished the office of provost marshal
before Sheriffs could have been appointed by the county courts, and to obviate this
difficulty the legislature passed an amending act two days later providing that the
governor with the consent of the council might appoint sheriffs for every county in
the colony for the two succeeding years.14

The first act, broadly defining the duties of the sheriff, provided that he should
execute, by himself or through his deputy,15 all writs and precepts directed to him
by the county court. The sheriff or his deputy was required to be in constant
attendance at the court where his jurisdiction lay, otherwise to suffer amercement
at the hands of the court. It was his duty to arrest any person for treason,
felony, or any breach of the peace at any time, though he could not serve a writ on
Sunday. The sheriffs of the various counties were obliged also to attend in turn
the various meetings of the general court, according to rules established by that
court, in order to serve writs and summon jurors to the court.

The act of 1739, providing for a specific term of years for the sheriff to hold
office, was defective in that a sheriff would often go out of office before another
could be appointed to succeed him. In order to remedy this an act was passed in
1745 which provided that the sheriffs should continue in office until their
successors had been appointed and qualified.16 The most important provision of this
act, however, was that amending the provision of the act of 1739 which confined the
nominations for sheriff to the justices of the court. After 1745 the justices were
empowered to recommend for sheriff any freeholder, excepting the members of the
legislature and the members of the governor’s council. The reason for this change,
the law stated, was the difficulty of finding men to execute the office, since the
persons nominated frequently chose to pay their fines rather than act in the
office. This provision, however, did not prevent the courts from continuing to
nominate justices of the peace for the office just as had been done under the act
of 1739.

The acts of 1739 and 1745 only defined the duties of the sheriff as an officer of
the court and prescribed the method of his oppointment. There were many other acts
passed subsequently which dealt with the office of sheriff directly or indirectly,
and these had for the most part to do with his fiscal duties, such as collecting
the taxes, settling with the treasurers and the county courts for the taxes
collected, selling at public vendue the estates of deceased persons and property
attached by him at the order of the court, attending to the prison and prisoners
under his care, and other such duties. In addition to these powers conferred by
statute, the sheriff enjoyed all other powers or duties conferred on him by the
county court. He was sometimes ordered by the court to secure Jailers, to repair
the jail, the court house, or other public buildings, or to see that it was done,
to let bids for the building of warehouses, ferries, jails, court houses, and other
public buildings,—to do, in short, on the order of the court all those things
necessary for the judicial and administrative government of the county.17




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                          THE APPOINTMENT OF THE SHERIFF

The importance of the sheriff in colonial government is nowhere shown so clearly as
in the politics of appointment to the office. The governor nominally appointed the
sheriff in the name of the king, but this control amounted to little in actual
practice. The real appointive body was the county court.

The most striking indication of local control of the appointment to the office is
shown in the fact that the justices of the court rarely nominated a person for
sheriff who was not a Justice of the peace. This practice, of course, was made
mandatory by the law of 1739, but although that provision was repealed in 1745, the
justices of the courts continued to nominate one another for the office down to the
Revolution.18

Another interesting fact is that the justices apparently had few scruples about
voting for themselves in the nominations. At the nomination for sheriff in
Pasquotank County in January, 1742, there were three persons present at the court,
and the nomination which was returned to the governor contained only the names of
these three men.19 There were numerous other instances of a like character.20 Toward
the close of the royal period, however, there seems to have grown up in the county
courts a prejudice against this practice of self-nomination. In response to such a
nomination "for sheriff in Tyrrell County in 1764, the court at a subsequent
meeting passed the following order:

    "The Court being of opinion that as the former recommendation of Sheriff
    being entered by order of three members only & as one of them was
    recommended & at the first of the court, we recommend the following
    persons, Vizt: William Carkeet, James Johnston, and Major John
    Hardison.”21
This nomination prevailed, for James Johnston was made sheriff.22

At any rate, it is certain that toward the close of the royal period the nomination
of sheriff was no longer left to a small group within the court, but almost the
entire court engaged in the nomination. Ordinarily at the quarter sessions of most
of the counties there were about three to six justices on the bench, and rarely
over eight, even in the most populous counties in the eastern section. But when the
nomination of a sheriff was before the court, practically all of the justices in
commission in the county were present. A good example is found in the Bute County
quarter sessions in May, 1772. On Tuesday, May 12, there were only four justices
present, including two of the three men later to be nominated. On May 13, the day
of the nomination, there were twenty justices present, including all three of the
nominees. On May 14, the Justices had all returned to their plantations, for there
was barely a quorum, three justices, left to attend to the ordinary administrative
and judicial business of the court.23 In the same county in May, 1774, a similar
situation occurred. At the opening of the court on the day of nomination, there
were only three justices present. When the nominations were held, there were
twenty-one justices present.24 A similar case occurred in Orange County in May,
1764.25

With local politics thus entering into the nomination of the sheriff, the matter of
appointment could hardly be said to have been under the direct control of any
influence other than the county court. That nomination was considered as virtual


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election is shown not only by the above facts, but also by the fact that sometimes
the courts returned only one nominee when the law required that three be
returned.26 This local control is still further shown in the practice of nominating
three men according to law, two of whom the justices knew would not accept the
office if offered them.27 Then, too, there were personal and family politics
working both upon the county court and the royal governors. An example of this is
seen in the following letter from Robert Jones to Governor Dobbs:

    “I suppose you have not forgot the Sollicitation I formerly made in favor
    of my kinsman John Jones for the office of Sheriff of Northampton and
    Herewith you have a copy of the last Recommendations of persons fitly
    qualified to execute the said office in which you'll find him included.
    If you"ll be so kind as to grant him a commission for that purpose,
    you"ll do me an additional favor in sending it by the Bearer."28
Sometimes, too, the members of the legislature added their influence to the matter
of getting sheriffs elected, especially when, due to lack of courts or other
reasons, the justices failed to nominate.29

The governor, however, did have a slight, though nominal control over the office.
Every commission appointing a sheriff contained the specific phrase that such
commission was issued during pleasure only, and could be revoked by the governor at
any time.30 There were also various amendments to the laws as to the manner of
appointing which gave a modicum of power to the governor. These acts, however, gave
the governor power over appointments only in exceptional cases. In no sense did
they give him any effective control over the manner of appointment, or give him the
power of determining the matter of personnel.31

The council, usually siding with the governor in upholding the prerogatives of the
crown, was inclined to give him some power in the matter of appointing sheriffs. In
1774 it expressed the unanimous opinion that the governor had power to appoint
sheriffs in case the law providing for their appointment had expired before the
county courts could comply with such law.32 In 1749 the council made the unique
order that “no future person keeping ordinary be recommended to the governor to be
appointed Sheriff for any county within this Province."33 This order was sent to
the various courts, but it is not at all certain that it was enforced. For even
after a person was appointed sheriff by the governor, there was nothing to prevent
the county court from granting him a license to keep an ordinary. This was
frequently done.

As a matter of fact, the royal governors were not extremely anxious to assert their
authority over the county courts or their officers too strongly, for by doing so,
they would have aroused the hostility of the legislature, which was to a large
extent made up of justices of the peace, sheriffs, clerks of court, and other
members of the court ring. Hence, rather than exercise the power of removal vested
in them, the royal governors from time to time suggested that they should be given
the right of appointment. The Board of Trade agreed with the governors in this, but
nothing was done about it. The office was unequivocally in the hands of the local
court party.

In general, the results of local control of the office of the sheriff, from the
standpoint of the crown, tended toward a decentralized and weakened colonial
government. These results might be briefly classified as follows: (1) a cumbersome,
awkward, decentralized government resulting from an impairment of the governor’s
appointive power; (2) embezzlement and wastage of public funds by sheriffs; (3) lax

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and dilatory methods of administration of public, county, and parish taxes; (4)
control of elections and influence over politics by the sheriffs; (5) the greater
solidification of the county court ring; (6) various abuses in the administration
of the office of sheriff, such as abuses of the fee system, the method of serving
attachments, the jury system, and so on.




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                        IMPAIRMENT OF THE APPOINTIVE POWER

The position of the Board of Trade in regard to the impairment of the appointive
power of the governor is illustrated by a letter to Governor Tryon in 1770:
    “In regard to the Act for appointment of sheriffs,34 which we consider as
    part of the general system for the more effectual administration of
    Justice, as it does not leave a discretionary Power in the King’s
    Governor of nominating a Sheriff in case he should think fit to reject
    those recommended by the Judges, it does improperly and as we conceive
    unnecessarily deviate from the rule & usage in the kingdom."35
The Board of Trade went on to threaten, after stating the obvious proposition that
the chief representative of the crown in the county ought to be under the control
of the crown, that unless the legislature remedied the objection, it would
recommend the repeal of the act:
    “for no consideration of general Utility and convenience can justify an
    Acquiescence in a regulation that does not correspond with the
    Constitution of this Kingdom."
Replying to this letter, Governor Martin wrote:
    .... The Sheriff's Office .... is held entirely by favor of the
    Magistrates as Members of the County Courts, they being empowered by a
    law passed in the year 1768 to nominate three persons, of whom the
    Governor is obliged to appoint one, under which regulation by their
    juggles and corruption the Governor is compelled to appoint the candidate
    they favor so that in fact the absolute nomination of the Sheriffs is in
    those little prostitute judicatures and the power of the King's Governor
    in the case is perfectly nugatory to remedy this defection in policy. The
    Lords of Trade by their letter to Governor Tryon of the 12th of December
    1770 direct that it be recommended to the Assembly to amend that law by a
    provision vesting the appointment of the Sheriff in the Governor, and
    declaring that they should otherwise think it necessary to recommend it
    to His Majesty for his Royal dis-allowance. This Act, my lord, is so
    great a favorite with the Assembly, which is composed of justices of the
    peace, that there is no hope of its ever consenting to the proposed
    alteration, and embarrassed as the deliberations of that body have even
    been by faction since I came to this Country, I have had no opportunity
    to propose it.36
On two other occasions Martin admitted the danger of this local control and his
inability to cope with it in the legislature.37

These letters of Martin show that the royal governors and the Board of Trade began
to realize too late that a mistake had been made in 1739 when, in order to satisfy
the demands of the court party, the office was placed under local control and kept
there by subsequent acts. The price paid for this concession to popular demand in
1739 was a tendency toward decentralization of the administration from the
standpoint of the crown and toward greater unity and greater solidification from
the standpoint of the court party. The importance of the power controlling the
appointment to this office, then, can hardly be overestimated. For, since the
sheriff was the most important figure in the elections, the group controlling his
office could obviously exert some influence over the legislature. This was exactly
what happened, and throughout the royal period the justices of the peace held a

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place of dominance in the General Assembly.38 And, as Martin clearly saw, they were
determined to submit to no law taking from them the power to appoint an officer who
could maintain them in such an advantageous position.




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                    THE SHERIFF AND THE FISCAL ADMINISTRATION
The sheriff was given authority to collect the parish, county, and colony taxes.
Due to the decentralization of the fiscal administration and the local control of
the office of sheriff, there was not even an efficient and systematic tax system
for the colony, to say nothing of the individual counties, where local prejudices
and politics ran riot. Toward the latter part of the royal period not only the
governors, but even the legislature made attempts to remedy the evils in the
system.

Most of the acts relating to the fiscal powers of the sheriff had to do
specifically with the methods of accounting for the taxes collected. The first of
these laws was passed in 1755. “There is at present," the preamble of the act
stated, "no law whereby those who have been invested with the power of applying the
Public Money, or the collectors of the same, can be compelled to a speedy execution
of the said trusts, by Occasion whereof, the Public hath been greatly defrauded, &
the faith thereof much depreciated."39 This act provided that in case the sheriff
neglected or refused to account for taxes according to the various acts levying
them, the superior court of the district might give judgment against the sheriff,
on motion of the public treasurer of the district. The act also sought to correct
certain abuses in the collection and accounting of the public taxes by the
sheriffs. It was provided that since sheriffs had theretofore discovered taxables
not in the lists given them by the county court clerks, and had kept such taxes for
their own use, sheriffs so doing should account for the same on oath to the
respective treasurers, county courts, and vestries. The act also gave the sheriffs
full power in the collection of taxes. In cases where taxes were not paid when due
according to law, the sheriff was permitted to distrain slaves, goods, and
chattels. If the taxes were not paid within five days after such distress, the
sheriff was empowered to sell the property after first giving notice of at least
three days on the church door immediately after divine service. No “unreasonable
distress," however, was to be made. No attachment of slaves was to issue unless
there could not be found sufficient other property to settle the taxes due. To
protect further the public money against improper uses the law raised the bond
required of the sheriff from the one bond of £500 required by the law of 1739 to
two bonds of £1000 each.

In 1759 another act was passed to correct the same evils. This act stated that "the
continuing of sheriffs long in office, who do not regularly account for the Public
Taxes they collect, is of great detriment to the Province."40 To remedy this evil
it was provided that no county court should recommend to the governor any person
who had served two years successively, unless he could produce a certificate from
the treasurer of his district saying that he had fully accounted for and delivered
all public taxes he had received as sheriff.

An act passed in 1760 sought to make more explicit the duty of sheriffs in settling
their accounts.41 It provided that the sheriff in settling his accounts with the
treasurer should deliver his account, signed and proved, of all the money he had
received payable to the treasurer. This account the treasurer was required to
produce in his settlement with the general assembly as a voucher for the money
received by him. It was further provided that when the county court made allowance
to the sheriff for such persons as had no visible estate, five justices of the
peace should be present when the certificate of allowance was made.

In 1768 another effort was made to improve the cumbersome system. “Many of the
Sheriffs of the Province," the act stated, “have heretofore applied to their own

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private uses, or otherwise embezzled, considerable sums of the Public Money, in the
hopes of replacing the same when called for."42 To remedy this, it was provided
that the sheriffs should deliver to the county court a regular account, signed by
the treasurer of the district, ascertaining the amount of the public money received
for the year preceding, together with an account of all disbursements, and that
this account should be entered on the court minutes by the clerk. It was further
provided that if the sheriff were removed from office for any reason excepting
death, he should make an accounting with the treasurer immediately, otherwise he
was to lose all commissions from the time of his last settlement. Another important
provision of this act was that no person chosen as representative of his town or
county should be recommended during his term of office for the office of sheriff by
the county court. This provision obviously was aimed at the problem of reducing the
growing influence of the sheriffs over the legislature.43

In 1770 another act relating to the fiscal duties of the sheriffs was passed.44 The
principal object of this act was to correct “the many hardships and inconveniences
[which have] arisen from Sheriffs leaving the Province before they had accounted
for Public, County, and Parish duties, whereby their securities have become liable
for same." The act simply provided that the persons who had signed the bonds of the
absconding sheriff might collect all arrearages of taxes with practically the same
powers of collection that the sheriff had. This act, of course, did not remedy the
evil, but only provided for the relief of the persons signing the bonds of the
sheriff.

In 1773 an act was passed for a still more rigid accounting for taxes collected by
the sheriffs. This act provided that, when a sheriff failed to make payment of
public monies due from him, the treasurer of the district might then cause a writ
of scire facias to issue against him, or, if he were deceased, against his
executors or administrators. The act of 1755 had contained this same provision, but
this act went further and required that in case the treasurer failed or neglected
to bring suit against the sheriff for negligence in accounting, the treasurer
himself was to stand liable for the arrearages of the sheriff.45 This last
provision throws a flood of light on the political power of the sheriffs. For the
treasurers depended largely for their re-election upon the sheriffs, and were
therefore inclined to be rather lenient with them in accounting for the public
taxes. Hence the only way to bring the treasurers to task was to hold them
responsible for the overdue taxes if they permitted such to accrue.

In 1774 another act was passed to correct further abuses of the fiscal powers of
the sheriffs. The practice of the county courts in allowing to the sheriffs a
number of insolvents in the collection of their taxes led to the abuse of these
taxes being collected and not reported. To correct this, the act provided that the
sheriff should not be allowed more insolvents than were expressly sworn to in the
list deposited with the clerk of court and kept for public inspection. If the
sheriff returned any person as insolvent, and later proceeded to collect from such
person any taxes for the year in which he was declared insolvent, he was to forfeit
twenty pounds for every act of this kind.46

All of these acts relating to the fiscal powers of the sheriff were passed as a
result of the lack of an effective central control over the funds handled by the
sheriff. The sheriffs" accounts were audited in a rather haphazard manner by
neighbors and fellow justices of the peace and by treasurers dependent upon the
sheriffs for re-election. In fact, so imperfect in operation was the system of
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to speak of an auditing system, for no efficient or systematic method of checking
up on the funds of the colony existed.

The whole process of assessing, or list-taking, collecting, and auditing the tax
funds was in the hands of local officials. The county was divided into districts by
the county court, and one justice, usually with one constable, was assigned to each
district. The justice took a list of all the taxables in his district, or saw that
the constable did it, and returned it to the county court. The court then took all
the tax lists and turned them over to the sheriff, who was required to collect
whatever taxes were levied by the colony, county, or parish.47 Frequently there
were large numbers unlisted, due to increasing population and other causes.
Unscrupulous sheriffs, no doubt, collected from such taxables at times and used the
money for private purposes.48

There were various methods whereby the courts settled for the taxes collected by
the sheriffs. Sometimes the court itself received the account and passed upon it,
often when there was hardly a quorum present, and at times when a former sheriff,
sitting on the bench as a justice of the peace, would exhibit the account for taxes
collected during his sheriffalty.49 Sometimes the court permitted the chairman of
the court to settle with the sheriff.50 In some counties the clerk of court was
given this authority.51 But the usual practice was for the court to appoint a
committee of two, three, or four members to settle with the sheriff.52

Examining the county court records, we find it a widespread condition that the
sheriffs were delinquent in making their settlements, and at times were several
years in arrears. A striking example of this is found in Carteret in 1747. At the
July session of the court, the following entry was made in the court minutes: "At
the request of Charles Cogdell, Esq., Late Sheriff Desiring time to make up & pay
to this Court the levys which he hath received, This Court hath ordered that the
said Cogdell settle with Col Thomas Lovick and pay the sd Lovick such moneys due
and that the sd Lovick pay the same unto such persons who hath a lawful claim.53 At
the September term of court, Cogdell had not yet complied with this order of the
court, and he was consequently ordered to appear before the next court.54 This
order also was apparently disobeyed, for the December records show nothing of his
appearance, and no further orders were issued.55 In the minutes for the March
session, 1748, Cogdell was ordered to pay his arrearages within one month, or the
clerk was authorized to issue process against him or his security.56 Apparently the
delinquent Cogdell then settled his accounts after almost a year's active
insistence on the part of the court that he make up the levies he had collected,
for there are no further evidences in the records of his continued disobedience of
the order.57 The Tyrrell court made a weak and ineffectual effort to call the
sheriffs to account in December, 1766, by passing an order compelling the clerk of
court to “prosecute the several sheriffs for the county tax who may be in
arrears."58 There is nothing in the subsequent records to indicate that such
prosecutions were made, or that settlements were made more punctually.59 An unusual
admission of delinquency is found in the petition of Joseph Williams, sheriff of
Duplin County for several years. In his petition to the legislature in 1761, he
claimed that, as a result of his office, he “became debtor to the public in a large
sum of money for the public taxes, but meeting with misfortunes," he was rendered
unable to discharge the balance, which was about £230, without great detriment to
himself and family. He claimed that he had already been obliged to dispose of
several valuable slaves to reduce his indebtedness to the public, and since there
was an execution in the hands of the sheriff against him, he prayed the assembly
twelve months to pay the balance.60 Similar examples of delinquency were rather
numerous.61

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The public, or colony, taxes were audited hardly more systematically than the
county taxes. In general, the sheriffs settled with the public treasurers, and the
treasurers in turn settled with the legislature. This led to several confusing
practices, the chief of which was embezzlement. In a letter to the Earl of
Shelbourne, Governor Tryon pointed out clearly the effect of the sheriffs on the
fiscal system of the colony:

The sheriffs have embezzled more than one-half of the public money ordered to be
raised and collected by them (about £40,000) .... not £5,000 of which will possibly
ever come into the Treasury, as in many instances the Sheriffs are either insolvent
or retreated out of the Province. The Treasurer's lenity or rather remissness in
the material part of their duty I construe to be founded on a principal of caution,
for by not suing the sheriffs in arrears they obtain a considerable weight of
interest among the connections of these delinquent sheriffs & which generally
secures them a re-election in their office when expired.62

Governor Tryon saw the weakness of the system of collecting the public taxes and
the abuses to which it was liable. Consequently, he drew up a careful and
systematic scheme for auditing the accounts of sheriffs and treasurers, modeled on
the Virginia system. In presenting this plan to the Assembly in 1769, he said:

The fact is too well-known to admit of denial considerable sums have been lost by
negligence or insolvency of the sheriffs and other collectors with their
sureties.63

The plan was rejected by the Assembly.64 The cause was obvious to Tryon, and he
courageously stated it in his final message to the assembly just before its
adjournment:

If ever carried, in any future session, into an Act of the legislature, it will be
acknowledged the most beneficial session this Colony ever experienced, though it
should be the only Act passed in that session. But this blessing is not to be
obtained for the country while the Treasurers, late Sheriffs, and their sureties,
can command, a majority in the lower house.65

Tryon used strong language before the assembly, but he did not overstate the facts.
And there was one good result of his emphatic stand in 1769: the first complete and
thorough-going investigation of the finances which the colony undertook. The
assembly authorized John Burgwyn, clerk of the court of chancery and secretary to
the council, to investigate the status of the fiscal system.66 The result was four
reports.67 These reports revealed a startling condition of the finances of the
colony, for most of which the sheriffs were directly responsible. The first report
showing the delinquency of sheriffs indicated an outstanding indebtedness to the
public on the part of these officials of £64,013 13s. 3d.68 This amount exceeded by
over three thousand pounds the total amount of taxes collected in the colony from
1748 to 1770.69 The second report showing the amounts due from sheriffs was
slightly improved, indicating a total arrearage for the colony of £52,455 1s. 7d.70
This widespread public defalcation was by no means confined to local officials in
the counties in which the Regulators were active. In Currituck, for instance, an
account had been standing since 1759 for £797 18s. Od., against which judgment had
issued, but Burgwyn reported the sheriff and his securities either dead or
insolvent. Such notations occurred with deplorable frequency in Burgwyn's first
report: ““New Hanover, William Walker, Sheriff, 1759, £986 16s. Od., Judgment, but
no securities taken and nothing to be got .... Rowan, David Jones, Sheriff, 1757,

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£1205 8s. Od., Judgment, both principal & securities bad .... Anson, Anthony
Hutchins, Sheriff, 1763-1764, £472 4s. 8d., Neither principal nor securities worth
a groat .... Cumberland, Isaiah Parvisol, Sheriff, 1763-1764, £652 12s. 1d.,
Principal died insolvent and securities not worth a groat.71 The majority of the
old accounts shown in the first report had not been collected by the time of the
second report, and in many instances had been increased.

These reports reveal the manner in which some of the officials whom the Regulators
complained about protected each other. In 1759, Stephen Cade was sheriff of Dobbs
County and incurred a debt due the public of £536 19s. Od. A judgment was secured
against this sum, but Burgwyn found that four of the sheriffs of Dobbs played into
each others hands, and that in levying the execution they always returned that
there was nothing to be found. One of the securities of Cade assured Burgwyn that
he had paid over two hundred and fifty pounds to one of these sheriffs, and that
this amount had not been credited to the account. Cade was also sheriff of Johnston
County in 1758, and left an arrearage of £970 6s. Id., against which judgment had
been secured with the same result as in Dobbs County.72 Neither of these accounts
had been collected by the time of the second report.73

This chaotic financial condition was not due in any sense to the fact that the
sheriffs were “insolvent royal officials over whose appointment and in the approval
of whose sureties the province had no voice whatever."74 It was precisely because
of local control of the sheriff that such a state of affairs came about. For it was
this local control and local politics that made impossible any systematic auditing
of the sheriff's accounts, such as that which Tryon attempted to secure.

Aside from the effect of the fiscal and governmental system, this haphazard method
of handling the funds had other results. In 1751, the treasurer of the northern
district reported that work on the public buildings in New Bern had been suspended
because the sheriffs had not paid in the money that they had collected.75 In 1763,
James Reed, the Anglican minister, complained about not having had a stipend for
nearly fourteen months, and said that:

    tho the sheriffs now have a whole years collection in their hands yet as
    there is no vestry to call them to account, they do not choose to part
    with the money on any terms or security whatsoever, the misfortune is
    they too often stand in need of it themselves. For the generality of the
    Sheriffs are very extravagant, to say no more, & very frequently spend
    the Public money not one in ten, I believe I might say in twenty, can
    ever make up their accounts, by which means the Clergy are frequently
    kept a long time out of their stipends.76
Another North Carolinian wrote a friend in Pennsylvania in May, 1771, that:
    there never was a people abused by authority more than this country has
    been.... the main substance .... was in the Sheriffs in most of the
    counties not having settled their accounts for eight or ten months past;
    so that by computation they were on the whole 80 or 100,000 pounds
    behind! The honest party in the administration appeared to the country
    too weak to bring these overgrown members to an account; therefore to
    strengthen their hands a great part of the country stopped payment of any
    taxes, but what were agreeable to law.77
It is worth while to note that Tryon was liberal-minded enough to suggest that the
pay of the sheriffs should be doubled in order to prevent embezzlement. In


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addressing the legislature in November, 1766, Tryon suggested that the emoluments
of the public officers were too small and advocated that the commissions of the
sheriffs especially be increased. "A Sheriff," he said, “as an Officer of the
Revenue, and Being vested with many executive powers, holds an employment of great
trust and importance; how far this trust has been executed with fidelity and
punctuality in many counties, the Treasurers accounts will certify." He then
recommended that the commissions be doubled on the collection of taxes ""to prevent
future neglect or embezzling," a fact which would be an inducement to "men of
probity and responsibility to offer themselves as candidates for that active and
important office."78 This was advice to which the ex-sheriffs and justices in the
assembly could give ready attention. An act increasing the sheriffs" commissions
was passed almost immediately.79

As a matter of fact, the sheriff was one of the best paid officials in the colony,
even when his office was conducted with strict honesty. His revenues came from
several sources: (1) fees for the performance of orders of the court, such as
making arrests, serving processes, executing attachments, and so on; (2)
commissions for collecting the taxes; (3) a salary paid by the colony; (4) a salary
paid by the county court for "extraordinary" services performed by the sheriff for
which there were no fees allowed by act of the legislature; (5) commissions on the
sales of estates for which he acted as vendue master; and (6) various other fees
and commissions due to the linking up of the office with the county court ring,
whereby the sheriff was given opportunity to administer estates of orphans, act as
inspector for the county, hold militia offices, and so on.

By an act of 1740 the commissions of the sheriffs for taxes were placed at three
per cent.80 Three years later this commission was raised to six per cent.81 It
apparently remained at that rate until the increase made in 1766 to eight per
cent.82 The salaries which the sheriffs received from the colony amounted to a
stipend of from eight to ten pounds. The salary at first was eight pounds
proclamation money but was later increased to ten pounds.83 The commissions allowed
the sheriff as vendue master, according to Tryon, were not over “two per cent or
6d. in the pound.84 The courts, however, used a discretionary power in fixing the
commissions of the sheriffs in this particular.85 Not the least of the sheriff's
profits in office, however, came from his connections with the powerful court ring,
for the sheriff frequently held several important positions. James Ellison, Sheriff
of Beaufort, was also deputy surveyor for Granville, a justice of the peace, and
inspector for the port of Bath.86 The sheriff was practically always a colonel in
the militia. The sheriffs in the Granville district were for the most part not only
deputy surveyors but also quit-rent collectors, for which office they received five
per cent of all collections.87

It is apparent, then, that the office of sheriff was very lucrative, due to the
many fees, commissions, and other emoluments attached to it. What any one sheriff
received in a year cannot, of course, be determined. But the liberality of the
commissions and fees, to say nothing of the fraudulent abuses of these incomes,
leads us to the conclusion that the office was very attractive financially.




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                        THE SHERIFF'S CONTROL OF ELECTIONS
One of the most important aspects of the sheriff’s office was its influence over
the politics of the colony. To understand this adequately it is necessary to
inquire briefly into the suffrage laws of the colony.

By an act passed in 1715 the suffrage was made much more liberal than under later
acts passed in the royal period.88 Persons twenty-one years of age, having resided
in the precinct one year, and having paid the levies for the year preceding the
election, could vote for burgesses.89 The voting was done by a method which lent
itself admirably to political exploitation. The voter was given five votes; he
wrote his choice of five names on a scroll of paper, or had it written for him,
signed his name to the paper, and handed it to the deputy marshal taking the poll.
In 1743, the manner of voting was somewhat altered. The use of a scroll was still
retained, but the voter did not sign his name to it, although he did enroll his
name in a book kept open by the sheriff at the same time that he voted.90 By this
act, also, only freeholders were permitted to vote; the freehold necessary was
fifty acres.

In 1760, the system was made even more advantageous for political influence by the
sheriffs, for in that year the legislature passed an act requiring voting by the
viva voce method. The candidates might, at any time after the election, look at the
poll, and might require the sheriff to give them a copy of it.91 At about this
time, the elections began to be held at the court house in each county; that is,
directly under the eyes of the influential local court. Each writ of election
issued to the sheriff contained directions that the election be held there.92

It is natural to suppose that abuses would occur under such a system as this. The
act of 1715 even anticipated this, and required that the marshals should attend the
first three days of the legislature in order to explain disputed elections.93 It is
significant to note, however, that there were less complaints of disputed elections
during the proprietary period than during the royal period.94 Immediately after the
establishment of the office of sheriff, the number of complaints of wrongly
conducted elections increased so much that the legislature abandoned its original
policy of hearing the petitions itself, and appointed a committee of privileges and
elections, to which it referred all such matters.95 The findings of the committee
in important cases were usually acted upon by the committee of the whole house.

Apparently the first complaints of mismanagement in elections came from the
precincts of Currituck and Craven in 1731. In Craven, two justices of the peace
were opposing each other: Joseph Hannis and Walter Lane. Lane was declared legally
elected.96 In the Currituck election the house moved for a new writ of election to
issue, and issued its warrant for Thomas Lowther, the marshal on the ground that he
had “misbehaved himself in the said election."97

In 1735, Maurice Moore of New Hanover precinct petitioned the legislature that “he
had the majority of Votes but the Marshal who took the Poll returned Mr. Job. How."
The house considered the allegations of both sides, and resolved that Moore was
legally elected by a majority of votes.98 Again, in 1739, the house acted contrary
to the returns of an election officer. The committee of the whole house examined
several witnesses and concluded that Robert Boyd, the returning officer for Bath,
had conducted the election irregularly. The petitioner, Richard Rigby, was declared
duly elected, and Boyd was summoned to the bar of the house to be “mildly
reprimanded .... for obliterating the Poll for Bath Town & other misdemeanors in
contempt of the Privileges of this House."99 At the same time Walter Lane of Craven

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County again protested his illegal defeat at the polls, and was declared legally
elected.100 The same legislature summoned John Carter, a deputy marshal, “to attend
upon a controverted election," and he replied by sending a “very abusive answer to
this House."101

Again in 1740 we find Walter Lane protesting an election in Craven on account of
the fact that the sheriff voted in the election. The house admitted the sheriff’s
vote as proper, however, and the petition was rejected."102 At the same session a
petition was presented by Griffith Jones, John White, and Robert Hamilton in behalf
of themselves and the freeholders of Bladen County saying that Richard Everard was
not qualified to be a member of the legislature, and gave as their specific charges
that he “procured several unnaturalized Foreigners and others not qualified and
they were polled by the Sheriff; and that the Sheriff was prevailed on to close the
polls abruptly before several Freeholders had given their votes and who were at the
polls for that purpose."103 The petition was put to a vote and rejected, apparently
without debate.104

A very significant protested election occurred in 1754 in Craven County. On
December 16, of that year, four inhabitants of New Bern petitioned the legislature
saying that they, among others, had voted for one Jeremiah Vail, but that James
Davis, sheriff, had returned himself, "which we Apprehend is Quite Irregular and
may be of Very bad President."105 The house declared Davis illegally elected.106 In
the meantime the adherents of Davis had presented another petition to the assembly
saying that they had voted for Davis while ignorant of the fact that his being
sheriff would render him ineligible, and that, if he should be expelled, they
desired a new writ of election to issue rather than to see Vail seated.107 This
petition was signed by fourteen inhabitants. In the debate on the matter. Samuel
Swann objected to the motion for a new writ, and carried a motion to declare Vail
seated.108

Beginning in 1754 and lasting until 1773 there was an increasing number of disputed
elections and charges of mismanagement on the part of sheriffs in the elections in
the western counties, particularly in Anson and Granville. In December, 1754,
William Hurst of Granville petitioned the legislature in a protest against the
election of Robert Harris.109 In this petition Hurst declared that the sheriff had
permitted many persons who were not freeholders to vote, thereby giving Harris a
majority which he otherwise would not have had. Hurst further suggested that this
was “greatly Subversive of the freedom of Elections, the Laws of this Province, the
Rights and Liberties of the Subject." To this suggestion the legislature replied
briefly that ““The law does not allow of an Inquiry into the Facts contained in the
sd Petition," and Harris was declared duly elected.110 Here, for the first time, the
legislature made an unequivocal denial of its authority to go beyond the returns of
an election officer, and thereby made tacit assertion of its connections with local
politics.

In 1760, another contested election occurred in the same county. Several
resolutions of the committee of privileges and elections in April of that year show
that the sheriff of Granville had appointed Reuben Searcy as clerk in the election,
and that Searcy had acted with great partiality “in a manner subversive of the
rights and Freedom of Elections." The resolutions were adopted and a new writ
issued. There was apparently no doubt as to the legality of inquiring into the
returns of election officers; the language used by the committee, in fact, was
almost identical with that used by Hurst in the contest just mentioned.111




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In the following years there were many elections in the conduct of which the
sheriff was accused of partiality or mismanagement. In at least five of these cases
the legislature appeared to find that the accusations were true, and either issued
new writs or declared the petitioner legally elected.112 In four of the contested
elections, however, the legislature declared that the petitions of protest could
not be sustained.113 Three petitions apparently died in the committee.114 The causes
of protest in all of the elections were practically the same. William Gray of
Bertie, in 1760, said he was “duly Elected ....and that the Sheriff refused to
return him."115 William Little of Anson protested that a “number of voices at the
Election were refused or neglected to be received in favor of your Petitioner which
would have given a Great Majority of Voices in his favor."116 Jacob Blount of
Craven, in 1762, accused the sheriff of permitting several persons who were not
freeholders to vote; and at least five persons admitted to the committee that they
voted when they were not legally qualified to do so.117 In 1770, Thomas Respess of
Beaufort accused the sheriff of illegally returning Wyriot Ormond when “he had a
great majority of the votes of the freeholders of the town."118 In 1773, Thomas
Stewart of Tyrrell said that the sheriff, “by suffering a number of persons to vote
at the said election who were not possessed of a freehold in that county and
several freeholders to vote twice and by divers other illegal and oppressive
Acts .... procured a majority for one William Slade.119 The petition of Peter Blinn,
Gentleman, of Bath in 1766 claimed a legal majority of the votes of the
freeholders.120

One of the most significant petitions coming to the assembly in protest of
mismanaged elections by sheriffs was that of Thomas Wade of Anson County in 1773.
Because of the light which it throws on the electoral procedure in colonial North
Carolina, it is worth while to give the matter detailed attention. Starting out
with the broad allegation that William Pickett, sheriff of Anson, did not conduct
the election in a proper and legal manner, Wade made several specific charges
against him:
    that he did not appoint inspectors of the election as required by law to
    do; “that sundry evil-disposed persons were, with the connivance of the
    sd Sheriff, placed in the passage to and from the Table where the sd Poll
    was kept, who stopped and interrogated the freeholders in their way to
    the Table .... who they intended to vote for; that if the sd
    freeholders .... declared in Faviour of Mr. James Pickett, the brother of
    him, and for Mr. Charles Robinson, they were then assisted and helped
    forward by those persons to give in their Votes;" if their vote was
    unfavorable, they were “obstructed and hindered .... some of them being
    violently pushed back, others of them pulled back by the hair of their
    heads; and others so rudely "and violently treated that great numbers....
    were deterred from voting for the petitioner and many of them from voting
    at all."" Wade also charged that Pickett permitted the clerk at the table
    where Wade’s poll was kept "to be assaulted and beaten in a very riotous
    manner as he sat at the table writing down the names of the voters ....
    and to be driven from the table and out of the court house and deterred
    from returning any more during the election," though not more than half
    of the freeholders had voted. He further charged that a justice of the
    peace voluntarily required the sheriff to take the leader who beat the
    clerk and put him in jail, and he refused “to obey the command of the
    justice, or any ways to keep the peace, to quell the sd riot, or conduct
    the sd Election with any order or decorum."121




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When the matter was discussed in the Committee in December, 1773, several
depositions were heard. Only one of these affidavits declared that the election was
just and impartial, and this was the statement of John Gwinn, the clerk who took
the poll for Pickett’s brother.122 There were three others who testified that there
had been fighting, and that Thomas Wade, as a justice, had commanded the sheriff to
take the person who had started the riot. One of these, Robert Jarman, testified
that he had voted for Wade, and as he did so, the sheriff whispered to him: “I see
you vote against us, but pray don’t make Interest against us." Jarman testified
that he then went out and presently returned, when he saw one Sam Parsons standing
by the clerk’s table with a bottle in his hand, and as the people came in he
whispered to them as if interrogating them, and that when Wade ordered him away he
refused and seemed to be “in a passion." Going out and returning again, Jarman saw
the two clerks, John Twitty and John Gwinn, standing at the table, one with a
pistol in his hand and the other with a drawn sword, and said that he heard Wade
“command the peace at sundry times," and command the sheriff to take the leader of
the riot, and heard the sheriff’s refusal. Wade then turned to the crowd to know if
there was a deputy or a constable present. At that point Jarman again left the
court house, “it appearing dangerous to stay in the house as it looked as if murder
would be done." Jarman asserted that many people had been unable to vote, as “they
was not so fond of an Election as to fight for it."" He believed Wade would have
been elected if the election had been orderly.123

When the committee in the assembly had heard these witnesses, they resolved that
"the charges contained in the sd Memorial are not sufficiently supported by
testimony so as to set aside the sd election." The house concurred in the
resolution.124 In spite of this, one can scarcely doubt that the sheriff, being the
brother of one of the candidates, did show some partiality in the election. The
majority of the evidence submitted indicates that. At any rate, the incident serves
to illustrate the powerful influence which sheriffs exercised over the elections.

As indicated by the Wade petition, the elections were probably very informal, one-
sided affairs. Politics in its crudest sense no doubt found play in them. Since the
elections were held at the court house, and under the immediate supervision of the
influential court ring, and under the control of the most powerful officer in the
ring, the poorer and more numerous class of freeholders probably would not dare to
vote contrary to the wishes of the men who more or less determined their economic
and social status. Another phase of the political exploitation of the elections no
doubt took place in the ordinaries, or inns. Small, informal caucuses, where flip
and punch flowed freely for those who promised to vote the right way, were probably
held at these places, and elections were more or less determined before the drawing
up of the electoral list. Sheriffs were frequently the owners of ordinaries, and
therefore in ready position to bring the aid of liquors to their elections.125

The petition of Wade also indicates the importance of family politics. But there
was still another political phase of the court ring which strengthened the power of
the sheriffs; namely, the politics of the colonial militia. The county militia,
like the county court, with which it was inseparably bound up, was virtually a
close corporation. The officers were the justices of the peace, the clerks of
court, and the sheriffs. They controlled the appointments to the militia so
effectively that the governors were in the habit of sending blank commissions to
the men already in command, and permitting these men to fill the commissions out
for their subalterns and even for their successors.126 As a result, all of the
offices drawing attractive fees were filled by local court officials. The sheriffs
were prominent in the commissioned ranks of the militia. Alexander Mebane of
Orange, Samuel Heighe of Pasquotank, Osborne Jeffries of Bute, John Gray of

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Orange,127 and many other sheriffs were commissioned officers in the militia.128 And
the militia was often used to solidify the position of the court officials in the
elections; one petitioner complains of the lax discipline of the militia, “which is
wink"d at by the Officer’s Commanding them, in order to Curry favour [to get their
Votes at Elections] with the People ...."129

Because of these facts, the court officials constituted the most unrepresentative
form of local government which North Carolina has ever had. The suffrage was not
only restricted legally, but in actual practice was so managed by the officials
that nothing like free and representative suffrage existed. As a result even the
legislature was of the same complexion as the local bodies, and could be said to be
representative only in the sense that it was representative of the dominant class
of local officials. The system of self-government which the colonists had thus
developed through practice was one which could be easily exploited by the leaders.
It is obvious that such an unrepresentative form of government, dominated by local
leaders, could be brought to revolutionary pitch in short order if the officials
desired it. This is precisely what happened in revolutionary North Carolina, and of
the governing officials who were at the lead, the sheriffs were quite prominent.130




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                                     FOOTNOTES
1 Taper, c. L., North Carolina: A Study in Royal Government, Chapter 1X, (New York,
1904).

2 This was a very important power in the newly-settled colony on account of the
danger of riots and slave insurrections Obligation to service applied to all males
above the age of fifteen and able to travel. Cf., Potter’s Justice, pp. 243-244.

3 Colonial Records, V1. pp. 990-991. These records will be referred to hereafter
thus: C. R., VI, pp. 990-991.

4 Craven County Court Minutes, June 17, 1729; June 21, 1743; December 12, 1747;New
Hanover County Court Minutes, September, 1764; December, 1766. These records will
be referred to hereafter thus: Craven C. C. M., June 17, 1729, etc.

5 In 1764 the New Hanover court ordered "that the Sheriff immediately procure some
person Gaoler to reside in the Gaolers house Built for that purpose in order to
prevent escapes which of late have too often happened on that account." New Hanover
C. C. M., September, 1764; C. C. M. passim.

6 The power of the county was invoked for this purpose in New Hanover in 1767: "The
Court being informed that upwards of twenty runaway slaves in body armed are now in
this county, ordered that the sheriff do immediately raise the power of the county,
not to be less than thirty men well armed to go in pursuit.... and be impowered to
kill all such slaves as shall not surrender." New Hanover C. C. M., June, 1767. In
1753, President Rowan, writing to Captain Wilkins of H. M. Sloop Scorpion, gave the
following as his reason, among others, why the sloop should not return to England:
"The Negroes who have lately attempted an insurrection among us will have the less
to discourage them to repeat their attempts." Rowan, Executive Papers, February 1,
1753.

7 C. R., IX, X, passim.
8 Governor Burrington to Secretary Popple, November 11, 1735, C. R., IV, p. 23.

9 In cases of vacancy or non-attendance at court, the court itself usually assumed
the power of appointing the deputy. Carteret C. C. M., June, 1736; Tyrrell C. C.
M., June, 1735.

10 C. R., I, p. 583.

11 C. R., IV, p. 175, October 15, 1736. Doubtless another reason for the change in
1739 was that given to the governor and council by Provost Marshal Robert Route
"that he could get no person of reputation to act under him, the profits being very
small & being very desirous to resign what right he bad in that county as Provost
Marshal." C. R., II, p. 616.

12 C. R., XXIII, p. 122-127. 154 THE
13 The name "precinct"? was changed by this act to that of county.
14 C. R., XXIII, pp. 129-130.

15 The act did not mention how deputies were to be appointed, but it was apparently
understood that the sheriff had that right. Beaufort C. C. M., June 1757; C. C. M.,
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16 C. R., XXIII, pp. 217-218.

17 These duties were sometimes unique. The Bute County Court, for instance, ordered
Jethro Sumner, who was later to become the hero of Eutaw Springs, to perform a sort
of janitor’s service. It was ordered "that Jethro Sumner, Sheriff, keep the Court
House clean and in decent order to the satisfaction of the Court and take care of
the Law Books, etc., and when performed at the years end to be paid forty shillings
proc." Bute C. C. M., November, 1774.

18 The following sheriffs of Tyrrell County, for instance, were justices of the
peace prior to their appointment: Edmund Smithwick, 1756; John Hooker, 1757; Giles
Long, 1758; John Hooker, 1760; John Hardison, 1761; Jeremiah Wynne, 1762; Edmundson
Samuel Smithwick, 1763 and 1769; James Johnston, 1764; Joseph Spruill, 1770, 1771,
1772. Tyrrell C. C. M., 1756-1772. This condition seems to have been typical not
only of Tyrrell, but of most of the other counties. In Beaufort County from 1756 to
1761 every nominee for the office of sheriff was a justice of the peace. Beaufort
C. C. M., 1756-1761. The result in actual practice was the same as if the provision
of the act of 1739 had not been repealed. In New Hanover County in 1764 "the Court
proceeded to nominate or appoint three justices to be returned to his excellency
for appointing one of them sheriff." In the voting there were no nominees who were
not justices, five of them being nominated. New Hanover C. C. M., 1764.

19 These three were: Col. Thomas Hunter, Chairman of the court, Capt. Charles
Sawyer, and Capt. David George. Pasquotank C. C. M., January, 1742. Notice the
titles. The justices were not only the judicial and executive officials of the
county, but they controlled the militia to a large extent, probably on account of
the influence and fees attached to militia offices. In 1754, James Connor, who was
colonel of the Tyrrell regiment and who also held commissions as clerk of the court
and clerk of the peace in several counties, advised President Rowan that the only
change needed in the militia law was an increase in the fees allowed officers, and
a decrease in the "extravagant"" fees allowed soldicrs of the rank. Rowan Excutive
Papers, December 8, 1754.

20 Hunter, Sawyer, and George were again returned in the same county in 1743.
Pasquotank C. C. M., 1743. In March, 1761, John Hardison, Joseph Spruill, and Isaac
Meeks were nominated by the Tyrrell court, there being only three justices present,
two of whom were Hardison and Spruill. Tyrrell C. C. M., March, 1771. In 1763, in
the same county four justices were present and three of those present were
nominated. Idem, 1763. In Beaufort County, March, 1758, three justices were sitting
and two of those present were nominated. Beaufort C. C. M., March, 1758.

21 Tyyrell C. C. M., March, 1764.
22 Idem, June, 1764.
23 Bute C. C. M., May 1772.
24 Idem, May, 1774,
25 Orange C. C. M., May, 1764.
26 Pasquotank C. C. M., March, 1772; C. C. M., passim.
27 Governor Martin to the Earl of Hillsborough, C. R., IX, pp. 314-315.
28 Dobbs, Executive Papers, June 6, 1756.

29 The representatives from Beaufort petitioned Governor Dobbs in 1760 saying that
"there wants a Sheref for the said county their being no corte letely held there to
represent three persons . .. . We humbly recommend .... John Anderson." Dobbs,
Executive Papers, 1760.



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30 C. R., VII, p. 91.

31 An act passed in 1755 gave the governor power to appoint any freeholder in case
the person recommended to him by the justices refused to serve. C. R., XXIII, pp.
424-432. An act passed in 1759 provided that no county court should recommend to
the governor any person who had served two years successively unless he could
produce a certificate from the treasurer of his district saying that he had fully
accounted for and delivered all public taxes he had received as sheriff. If the
county court did nominate such a person, the governor was empowered to appoint
someone else to the office. C. R., XXIII, p. 505. These acts were amended in 1766
to the extent that if the person holding the nomination of the county court did not
apply to the governor for a commission before the next succecding court, the
governor might appoint some other person of "sufficient curcumstances and ability."
C. R., XXIII, p. 767. In the same year another act was passed giving the governor
power to appoint as sheriff any freeholder in counties where there were no _
sheriffs, since in some counties, for lack of sheriffs, the taxes had not been
collected. C. R., XXIII, pp. 767-768.

32 C, IX, p. 983.

33 C. R., IV, p. 950. How effective this order was is shown by the fact that on
June 1, 1758, the Beaufort court accepted the commission appointing Thomas Bonner
sheriff and at the same time granted him a license to keep an ordinary. Beaufort C.
C. June, 1758. Joseph Spruill, Edmund Smithwick, John Hooker, sheriffs of Tyrrell,
were also keeners of ordinaries. Tyrrell C. C. M., 1751-1757. James Bonner, Thomas
Bonner, and John Hardy, sheriffs of Beaufort, were keepers of ordinaries. Beaufort
C. C. M., 1756-1758. Samuel Heighe of Pasquotank; Jethro Sumner of Bute; Alex
Mebane of Orange; James McIlwaine of Craven; Osborne Jeffries of Bute; Caleb
Grainger of New Hanover; Isaac Gregory of Pasquotank were some of the other
sheriffs who were keepers of ordinaries. Craven C. C. M - 744s AL aduotank C. C.
M., 1746; Bute C. C. M., 1768; Orange C. C. M., 1755; New Hanover C. {., 1749.

34 C. R., XXIII, pp. 789-790.
35 C. R., VIII, p. 266.
36 C. R., IX, pp. 1158-1159.

37 On board the Cruizer in the Cape Fear in September, 1775, Martin wrote to the
Earl of Dartmouth: "The appointment of Sheriffs.... ought to be in the same [the
governor’s] hands . . These officers are generally, if not universally, the leaders
in the present sedition."" C. R., x, pp. 244-246. Martin wrote the Board of Trade
from Long Island in 1777 as follows: "It has been thought advisable .... that the
power of appointing sheriffs be vested in the Governor in North Carolina, as it is
in this province, but it will be necessary that the law of 1768 ... be
disallowed ... as in effect it gives the power of appointing sheriffs entirely into
the hands of the justices of the peace, who have most shamefully prostituted those
important offices." C. R., X, p. 404.




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38 The assembly of 1735, for instance, at which there were forty-seven members
present, contained no less than thirty-three justices of the peace, and at least
six of the members were appointed justices soon after. C. R., I, pp. 526, 638, 676;
III, pp. 223,234,252; IV, pp. 46, 48, 115, 218, 313, 346, 713, 800. The committee
on propositions and grievances "of this legislature was made up of ten members, and
seven were justices. C. R., 1V, 817,823,825. Other and more important committees no
doubt had similar proportions.

The assembly of 1755 contained fifty-seven members present, and in that body there
were thirty-eight justices, or exactly two-thirds of the entire number present. C.
R., HI, 522,526; III, pp. 223, 234, 244, 425; IV, pp. 243, 330, 345, 346, 562, 683,
693, 713, 813, 966, 1046, 1254; V, pp. 403, 655, 691, 813, 824, 993; VI, pp. 80,
762, 1070.

The majority of the total number of representatives from individual counties
throughout the colonial period were also justices of the peace. Bute County, where
the court party was very firmly entrenched had seven members from the time of its
establishment in 1764 to 1775, and all were justices. North Carolina Manual, 1913,
p. 350; Bute C. C. M., 1764-1775. Carteret County from 1725 to 1775 had eighteen
members, including William Borden, a Quaker who never took his seat, and all but
one of the others were justices. Idem, p. 3580; Carteret C. C. M., 1725-1775.
Granville County had nine members from 1746 to 1775, and all were justices. /dem,
p. 350; Granville C. C. M., 1746-1775. The examples might be multiplied; they were
typical rather than exceptional.

39 C. R., XXIII, pp. 424-432.
40 C. R., XXII, p. 505.
41 C. R., XXII, pp. 526-531.
42 C. R., XXIII, pp. 713-723.

43 Governor Tryon, writing to the Earl of Shelbourne about this act, on March 7,
1768, said: “This Act will be.... productive of great benefit by stopping up the
avenues that led many former sheriffs to fraud and embezzlement of the public
money, as the excluding the members of the assembly being returned .... to the
governor for his choice .... will have a salutary effect, for while those sheriffs
who were representatives were attending to the public service in the.... Assembly,
their duties in their counties were too frequently neglected or abused by their
deputies." C. R., VII, p. 694.

44 C. R., XXIII, p. 789.

45 C. R., XXIII, p. 905. Governor Martin had addressed the assembly of 1773
concerning this bill as follows: "The Law for the appointment of Sheriffs will also
deserve your maturest consideration, the manifold and important duties of these
officers .... involve almost every relation to the honor and happiness of the
community." He further expressed the desire that, "as the deficiency of funds of
this County as well as the disorders that lately prevailed .... are due to their
[the sheriffs"] malversation," the assembly would take effectual steps to suppress
these bad results. C. R., IX, p. 379, 455.

46 C. R., XXIII, p. 970.

47 The power of collecting taxes was in some counties vested in the constable prior
to the establishment of the office of sheriff. Tyrrell C. C. M., 1735.



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48 The law of 1755 sought to correct this. Supra, note 39. The Tyrrell court in
September, 1756, commanded John Hardison, sheriff, to return a list of "such
persons as have paid their taxes and are not upon the list of taxables to the next
court." Tyrrell C. C. M., 1756.

49 Bute C. C. M., September, 1759.

50 Col. Thomas Lovick, chairman of the Carteret court, member of the assembly from
1734 to 1760, and colonel of militia, usually settled in this manner. Carteret C.
C. M., passim.

51 Carteret C. C. M., 1757.
52 C. C. M., passim.
53 Carteret C. C. M., July, 1747.
54 Idem, September, 1747.
55 Idem, December, 1747
56 Idem, March, 1748.
57 Idem, passim,
58 Tyrrell, C. C. M., December, 1766.
59 Idem, passim.

60 C. R. Legislative Papers, MSS., April 4, 1761. This petition was rejected by the
Legislature. C. R., VI, p. 671.

61 For example, in May, 1776, Joseph Spruill, who was sheriff of Tyrrell County
from 1770 to 1772, made a settlement for his taxes in 1772. Tyrrell C. C. M., May,
1776. In Carteret County in 1757 a committee of three justices was appointed to
examine the accounts of the sheriffs for the years 1755 and 1756. Carteret C. C.
M., 1757. In the same county in 1747 the sheriff settled his account with Col.
Thomas Lovick in June, with a balance due the county of £21 4s. 6d., and this
amount remained in the sheriff's hands until December, 1748. Carteret C. C. M.,
June, 1747; idem, December, 1748. In September, 1760, the sheriff of Beaufort
County for 1757 and 1758, exhibited his account to the court for those two years.
Beaufort C. C. M., September, 1760. In Tyrrell in November, 1769, the sheriff
settied his account for the year 1767. Tyrrell C. C. M., November, 1769. In the
same county in May, 1771, Edward Smithwick, who was sheriff in 1769, appeared
before the court "ready to settle his account," but refused to do so because five
justices were not present. Idem, May 1771. At this next quarter session, Samuel
Smithwick, who was sheriff in 1768, made his settlement in favor of the county to
the extent of £24 14s. 4d. Edward Smithwick settled at the same court. /Idem,
August, 1771.

62 C. R., VII, p. 497.
63 C. R., VII, pp. 93-94.
64 C. R., VIII, pp. 93-99.
65 C. R., VIII, p. 105.
66 C. R., VI, p. 984; VIII, p. 139.

67 It is generally considered that there were only three reports. North Carolina
Historical Review, Vol. III, p. 475. The fourth, if not prepared by Burgwyn, was
certainly based upon the other reports. Three of these reports, showing the state
of the taxes levied to retire the currency and the delinquency of tax collecting
officials, are in the Colonial Records. C. R., VIII, pp. 278-281; IX, pp. 166, 572-
575. The other, showing the taxes collected from 1748- 1770, is reproduced in the
North Carolina Historical Review, Vol. III, 475.

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68 C. R., VIII, pp. 278-281. This report was filed in December, 1770.
69 North Carolina Historical Review, Vol. II, p. 476.

70 C. R., IX, pp. 572-575. This report was filed March 5, 1773, and if not compiled
by Burgwyn was based on his earlier reports.

71 C. R., VII, pp. 278-281.
72 C. R., VIII, pp. 278-281.
73 C. R., IX, p. 574.
74 C. R., IX, p. xvii.
75 C. R., IV, p. 1292.
76 C. R., VI, pp. 990-991.
77 C. R., VIII, pp. 637-638.
77 C. R., VIII, pp. 637-638.

79 C. R., XXIII, p. 674. Only the caption of the law is published, but apparently
the commission was only raised from six per cent to eight per cent. Tryon, “View of
the Polity of North Carolina,” C. R., VII, pp. 472-491. Letter Book, p. 142; C. R.,
VIII, p. 256.

80 C. R., XXIII, p. 154.
81 C. R., XXIII, p. 212.
82 C, R., XXIII, p. 627; VII, p. 472; VIII, p. 256.
83 Legislative Papers, March 15, 1742; passim; C. R., VI, p. 743.
84 Tryon, Letter Book, p. 142; C. R., VII, p. 472.
85 Tyrrell, C. C. M., September, 1739; passim.
86 Beaufort C. C. M., September, 1760; passim.
87 Tyrrell C. C. M., 1761-1762; passim.

88 McKinley, A. E., The Suffrage Franchise in the Thirteen English Colonies in
America, pp. 80; 81-121.

89 C. R., XXIII, p. 12.
90 C. R., XXIII, pp. 207-210.
91 C. R., XXIII, pp. 523-526.
92 Tyrrell C. C. M., 1760; Executive Papers, 1769.
93 C. R., XXIII, p. 14.
94 C. R., II, III, IV, passim.
95 C. R., IV, pp. 384, 389, 496, 499, 500, 652-653.
96 C. R., III, pp. 289, 301.
97 C. R., III, p. 289.
98 C. R., IV, p. 117.
99 C. R., IV, pp. 384-389.
100 C. R., IV, pp. 384, 385, 387.

101 C. R,, IV, pp. 384-385. Carter was finally sent down to the house by the
council, where he was. in attendance as an officer, and begged the pardon of the
house.

102 C. R., IV, pp. 496, 499, 500.
103 C. R., IV, pp. 494-495.
104 C. R., IV, pp. 494-495.
105 Legislative Papers, 1754; C. R., V, p. 243.
106 C. R., V, pp. 245-246.

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107 This petition is not mentioned in the published journal of the legislature.
Legislative Papers, December 20, 1754.

108 C. R., V, pp. 245-246. By way of comparison it is interesting to note that in
1743 the assembly had issued a new writ of election on the ground that the sheriff
had merely failed to administer the Oath to an election officer and was not,
according to the resolution of the legislature, guilty ol any partiality at all. C.
R., IV, pp. 652-653.

109 C. R., V, p. 243.
110 Legislative Papers, December 18, 1754.
111 C. R., VI, pp. 366, 367, 374,375.
112 C. R., VI, pp. 351-352, 366, 406, 675, 896, 904; IX, pp. 748-747.

113 C. R., VI, pp. 1259, 1278-1279; VIII, pp. 317, 341; IX, pp. 748, 755, 756:
Legislative Papers November 5, 1762; November 12, 1762; December 13, 1762;
Secretary of State Papers, April 10, 1

114 C. R., VI, p. 365; VIII, 113; Legislative Papers, October 28, 1769.
115 C. R.. VI, pp. 366, 406.
116 C. R., VI, p. 365.

117 Legislative Papers, February 8 and 25, 1764; C R., VI, p. 1154b. The committee
reported, however, that Blount’s petition could not be sustained. Legislative
Papers, February 25, 1764; C. R., 1159, 1183. The house did not concur in the
resolution of the committee, but the matter was allowed to lie over till the next
session, and nothing was done about it.

118 C. R., VIII, pp. 317,341; Legislative Papers, December 13, 1770. Ormond was
declared duly elected.

119 C. R., IX, pp. 745-747. Stewart was declared elected by the committee.

120 Legislative Papers, November 7 and 8, 1766; C. R., VII, pp. 351-352. Blinn was
declared elected.

121 The justice here referred to was Wade himself. Secretary of State Papers,
November 29, 1773; the deposition of Robert Webb; idem, December 11, 1773.

122 Moreover, this deposition was taken April 13, 1773, three days after the
election, apparently in anticipation of a protest. The others were made in
November. Iden, 1773

123 Secretary of State Papers, November 30, 1773.
124 C. R., IX, pp. 748, 755, 756.

125 Supra, note 33. This was probably the cause for the order of the council in
1749 prohibiting ordinary keepers from being commissioned as sheriffs.

126 Executive Papers, April 30, 1756: passim.

127 Alexander McCulloch resigned his commission as colonel in Orange, and wrote to
Dobbs as follows: “The properest person to Act in that commission who lives in the
County is one John Gray who is Sheriff of sd County." Executive Papers, December
19, 1754.

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128 Bute C. C. M., 1766; Tyrrell C. C. M., 1754; Orange C. C. M., June, 1753; C.
R., XXII, p. 345; passim.

129 John Sallis to Dobbs, September 6, 1755. Executive Papers.

130 Dartmouth MSS., pp. 114, 123-124, 159, 171, 172, 215; C. R., X, 244-246. "These
officers are generally, if not universally, the leaders in the present sedition."
Martin to the Earl of Dartmouth, September, 1775.




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Transcribed from original documents by Brent R. Brian & Martha M. Brian.

This document and others can be found on our website:

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Brent R. Brian
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BrianMitchellGenealogy@gmail.com




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