Captain Benjamin Merrell &
The Regulators of Colonial North Carolina
An Act for Preventing Tumultuous and Riotous Assemblies, and for the More Speedy and Effectually Punishing the Rioters, and for Restoring and Preserving the Public Peace of This Province.
Whereas of late many seditious riots and tumults have been in divers parts of this Province to the Disturbance of the Public Peace, the Obstruction of the Courts of Justice, and tending to subvert the Constitution, and the same yet continued and fomented by persons dissatisfied with his Majesty's Government. And whereas it hath been doubted by some how far the Laws now in Force are sufficient to inflict Punishment adequate to such heinous Offenses.
Be it therefore enacted by the Governor, Council and Assembly, and by the Authority of the same, That if any persons, to the number of ten or more, be unlawfully, tumultuously and riotously assembled together, to the disturbance of the public peace, at any time after the first Day of February next, and being openly required or commanded by any one or more justices of the Peace or Sheriff to disperse themselves, and peaceably to depart themselves to their Habitations, shall, to the number of ten or more, notwithstanding such command or request made, remain or continue together by the space of one Hour after such Command or Request, that then continuing together to the number of ten or more, shall be adjudged Felons and shall suffer Death as in Case of Felony, and shall be utterly excluded from his or her clergy, if found guilty by verdict of a jury or shall confess the same, upon his or their arraignment, or will not answer directly to same, according to the Laws of this Province, or shall be mute or shall be outlawed, and in every such justice of the Peace and Sheriff within the limits of their respective jurisdiction, as hereby authorized and empowered, and required on Notice or knowledge of any such unlawful, riotous assembly to resort to the place where such unlawful riots and tumultuous assembly shall be, of Persons to the number of ten or more, and there to make, or cause to be made, such Request or Command.
And be it further enacted by the authority aforesaid, that if such persons so unlawfully, riotously and tumultuously assembled, or ten or more of them, after such request or command made in manner aforesaid, shall continue together and not disperse themselves in one hour, then it shall be lawful to and for every justice of the Peace or Sheriff of the County where such Assembly shall be, and also to and for such Person or Persons as shall be commanded to be aiding and assisting to any such justice of the Peace or Sheriff, who are hereby authorized and empowered and required to command all His Majesty's subjects of this Province of Age and Ability to be assisting to them therein to seize and apprehend such persons so unlawfully, and riotously and tumultuously continuing together after such Request or Command made aforesaid, and forthwith to carry the Persons so apprehended before one or more of His Majesty's Justices of the peace of the County where such persons shall be apprehended in Order to their being proceeded against for such Offenses according to Law. And that if such persons so unlawfully and riotously and tumultuously assembled together, shall happen to be killed, maimed, wounded or hurt in the dispersing, seizing, or apprehending, or endeavoring to disperse, seize or apprehend them, by reason of their resistance, that in every such case, the justice of the Peace, Sheriff, or under sheriff, and all other persons being aiding or assisting to them or any of them, shall be free, discharged and indemnified, as well as the King, his Heirs and Successors, as against all and every other person and Persons of, for and concerning the killing, maiming or hurting any of such person or persons so unlawfully, riotously and tumultuously assembled.
And be it further enacted by the Authority aforesaid, that if any Persons to the Number of Ten or more, unlawfully, riotously and tumultuously assembled together to the disturbance of the Public Peace, shall unlawfully and with force at any time after the first Day of March next, during the sitting of any of the Courts of Judicature within the Province, and with the intention to obstruct or disturb the Proceedings of such Court, assault, beat or wound or openly threaten to assault, beat or wound any of the judges, Justices or other officers of such Court, during the continuance of the term, or shall assault, beat or wound or openly threaten to assault, beat or wound, shall unlawfully and with Force hinder or obstruct any Sheriff, Coroner, or Collector of the Public Taxes in the discharge or execution of his or their Offices, or shall unlawfully and with force demolish, pull down or destroy any church or Chapel or any building for religious worship or any Court House or Prison, or any Dwelling House, Barn, Stable or other House, that then every such offense shall be adjudged a Felony. And the Offenders therein, their Leaders, Abettors and Advisers, shall be Adjudged felons, and shall suffer death as in due case of Felony, and shall be utterly excluded from his or their clergy; and if found guilty by verdict of a jury, or shall confess the same upon his or their arraignment, or will not answer directly to the same, according to the laws of this Province, or shall stand mute or be outlawed.
And whereas it hath been found by experience that there is great difficulty in bringing to Justice those who have been or may be guilty of any of the offenses before mentioned: for remedy thereof, Be it enacted by the authority aforesaid, that it shall and may be lawful to and for the Attorney-General of this Province for the time being, or his deputies, to commence prosecutions against any person or persons who may have at any time since the first Day of March last, or shall at any time hereafter commit or perpetrate any of the crimes herein before mentioned, in any superior Court within this Province, or in any Court of Oyer and Terminer, by the Governor or Commander-in-Chief for the time being, specially instituted and appointed, and the judges or justices of such Court, are hereby empowered and required to take cognizance of all such crimes and offenses, and proceed to give judgment and award execution thereon, although in a different County or District from that wherein the crime was committed, and that all proceedings thereupon shall be deemed equally valid and sufficient in law as if the same had been prosecuted in the County or District wherein the Offense was committed, any, Law, Usage or Custom to the Contrary notwithstanding.
And be it further enacted, by the authority aforesaid, that the judges or Justices of such Court of Oyer and Terminer so commissioned shall direct the clerk of the District where such Court of Oyer and Terminer is to be held to issue Writs Venire Facias, and the proceedings thereon to be in all respects the same as directed by an act of the Assembly passed at New Bern in January of the year of our Lord, One Thousand seven hundred and sixty-eight, entitled An Act for dividing this Province into six several districts and for establishing a superior Court of Justice in each of the said districts and regulating the proceedings therein, and for providing adequate salaries for the Chief Justices and the associate Justices of the said superior Courts. Provided, nevertheless, that no Person or Persons heretofore guilty of any of the crimes or offenses in this Act before mentioned, altho' convicted thereof in a different County or District from that wherein such Offense was committed, shall be subject to any or other or greater punishment than he or they would or might have been had this Act never been made.
And to the end that the justice of the Province be not eluded by the resistance or escape of such enormous Offenders, Be it further enacted by the authority aforesaid, that from and after the passing of this act, if any Bill or Bills of indictment be found or presented or presentments made against any Person or Persons for any of the crimes or offenses herein before mentioned, it shall and may be lawful for the judges or Justices of the superior Court or Court of Oyer and Terminer, wherein such indictment shall be found or presentment made, and they are hereby empowered and required to issue their proclamation to be affixed or put up at the Court House and each Church or Chapel in the County where the crime was committed, commanding the Person or Persons against whom such bill of indictment is found or presentment made to surrender himself or themselves to the Sheriff of the County wherein such Court is to be held within sixty days. And in case such Person or Persons do not surrender himself or themselves accordingly, he or they shall be deemed guilty of the offense charged in the indictment found or presentment made in manner like as if he or they had been arraigned and convicted thereof by due course of Law; and it shall be lawful to or for any Person or Persons to kill or destroy such Offender or Offenders, and such Person or Persons killing such Offender or Offenders shall be free, discharged and indemnified, as well as against the KING, his heirs and Successors, as against all and every Person or Persons for and concerning the killing and destroying such Offender or Offenders, and the lands and Chattels of such Offender or Offenders shall be forfeited to His Majesty, his Heirs and Successors, to be sold by the Sheriff, for the best price that may be had, at Public venue, after notice by advertisement for ten days, and the Monies arising from such sale to be paid to the Treasurer of the District wherein the same shall be sold, and applied afterwards for defraying the contingent charges of the Government.
And whereas by the great Riots and insurrections at the last superior Court held for the district of Hillsborough it may be justly apprehended that some endeavors will be made to punish those who have been guilty of such Riots and Insurrections, as well as those who may hereafter be guilty of the crimes and Offenses herein before mentioned: For prevention thereof and restoring Peace and Stability to the Regular Government of this Province, Be it enacted by the Authority aforesaid, that the Governor or Commander-in- Chief for the time being is hereby fully authorized and empowered to order to attend Regiments of Militia in this Province, to be under the command of such Officer or Officers as he may think proper to appoint for that purpose, at the Public Expense, to be by him employed in Aid and Assistance of the execution of this Law, as well as to protect the Sheriffs and Collectors of the Public Revenue in Discharge of their several duties, which draught or Detachments of Officers and Soldiers when made shall be found, provided for, and paid, in the same manner and at the same rates, and subject to the same rules and Discipline as directed in case of insurrection in and by Act of the Assembly made in the year One Thousand seven hundred and sixty-eight, entitled An Act for establishing a Militia in this Province.
And for effectually carrying into execution the purposes aforesaid, Be it further enacted by the authority, aforesaid, that it shall and may be lawful for the Governor and Commander-in-Chief for the time being to, draw upon either or both of the Public Treasurers of this Province, by warrant from under his hand and seal, for the payment of any such sums of Money as shall or may be immediately necessary for the carrying on and performing of such service, and the said Treasurers, or either of them, are hereby directed and required to answer and pay such warrants as aforesaid out of the contingent fund which shall be allowed in their settlement of the public Accounts.
And be it further enacted by the Authority aforesaid, that if any number of men shall be found embodied and in an armed and hostile manner, to withstand or oppose any Military Forces, raised in Virtue of this Act, and shall, when openly and publicly required, commanded by any justice of the peace or Sheriff of the County where the same shall happen, to lay down their arms and surrender themselves, that then and in such case the said Persons so unlawfully assembled and withstanding, opposing and resisting, shall be considered as traitors, and may be treated accordingly.
And be it further enacted by the Authority aforesaid, that the Justices of every Inferior Court shall cause this Act to be read at the Court House Door, the second Day of each Court for their Counties, and that the Minister, Clerk or Reader of every Parish in this Province shall read or cause to be read at every Church, Chapel or other place of public Worship within their respective parishes, once in every three months at least, immediately after, divine service, during the continuance of this Act.
And be it enacted by the authority aforesaid, that this Act shall continue and be in force for one year, and no longer. Read three times in Open Assembly and Ratified the 15th Day of January, 1771. WILLIAM TRYON, Governor. JAMES HASSELL, President. RICHARD CASWELL, Speaker. A true Copy of an Act passed last session of the Assembly. ROBERT PALMER, Secretary (Col. Rec. of N. C., Vol. VIII, PP. 481 to 486)
[Portrait: William Tryon by J. Wollaston. This oil portrait hangs in Tryon Palace, New Bern, North Carolina. Inscribed on the back "Govr. Wm. Tryon of No. Carolina--J. Wollaston, pinxt. New York--Anno D. 1767." The authenticity of the portrait is lost to history. If it is Gov. Tryon, it is the only known likeness to date]
Governor Tryon was an Englishman by birth and a soldier by profession. He received a commission as Lieutenant and Captain of the First Regiment of Foot Guards, 12th October, 1751; in 1757 he married Miss Wake, of Hanover St., London, with whom he received a large fortune of 20000 pounds sterling, and on 30th September, 1758, became Captain and Lieutenant-Colonel in the Guards. Through some Court influence, probably as Miss Tryon, his sister, was maid of honor to the QUEEN, and as he claimed relationship with the Rawdon or Moira family, he was appointed Lieutenant-Governor of North Carolina, where he arrived 27th of October, 1764, and was Gazetted Governor of the Province 2oth July, 1765. He administered the Government of North Carolina until July, 1771, when he was advanced to that of New York. He was promoted to a Colonelcy in the Army 25th May, 1772; became third Major of the Guards, 8th June, 1775; Major-General, 29th August, 1777, and Colonel of the 70th regiment, 14th May, 1778. In 1779 his name was inserted in the New York Act of Confiscation. On 21st March, 1780, he resigned the Governorship of New York, which for many years had been only nominal, and returned to England, where he was appointed Lieutenant-General, 20th November, 1782, and Colonel of the 29th Foot, 16th August, 1783. Governor Tryon died at his home, upper Grosvenor Street, London, 27th January, 1788, and his remains were deposited in the family vault at Twickenham. A highly eulogistic obituary notice of him, doubtless from the pen of Edmund Fanning, who accompanied him from North Carolina in July, 1771, appeared shortly after in the Gentleman's Gazette, LVIII, 179. "The name of Tryon," it asserts, "will be revered across the Atlantic while virtue and sensibility remain." The State of New York manifested its "reverence" soon after by erasing the name Tryon from the only county that bore it in the State. North Carolina also obliterated the name Tryon, which stigmatized one of her counties, by dividing the territory in 1779 into two new counties---Lincoln and Rutherford.
What was Tryon's real character it is difficult to say even at this day. That he was a soldier, diplomat and statesman, is beyond dispute. That he possessed personal courage is doubtless true; that he was well versed in the learning of his profession and possessed of a practical knowledge of its details, no one can deny who has studied his record. Undoubtedly, he was fond of the pomp and vanities of life generally; but, possibly, he was never quite so happy as when riding at the head of a column of gallant men, and doubtless the feather in his hat was just a trifle, at least, more showy than the plumes worn by men of equal rank, though, perhaps, not of equal military ability. But Tryon, when in North Carolina, at least, is considered to have been something more than a mere soldier seeking a bubble reputation at the cannon's mouth; but, for all that, he was always a soldier, and, while an adept in the arts of diplomacy whenever it pleased him to employ them, he always had in view the use of armed troops as a last resort. Diplomacy, too, perhaps, he kept for the legislature and force for the people. After the matter of the Stamp Act, he used all the force at his command, the armed vessels in the river, and proceeded to advise the home government as to the best time to send troops to the Province. In the matter of the Cherokee Boundary Line, of which there was no necessity, with an army consisting of one hundred men and servants, marching in all the vanity and pomp of a general going to war, he marched for the westward on May 20th, 1767, and returned again on June 13th of the same year, being out seventeen days, for which the taxables of the Province were assessed more than two pence per head, aggregating the sum of 115,000 pounds sterling.
In the matter of the Regulators, which, though perhaps the most important event of his administration, the advantages likely to accrue to himself personally from a successful armed conflict with so-called rebels, seemed to have possessed him at an early date, and to have blinded him entirely as to his duties to the people over whom he ruled. His desire to live in luxury and be surrounded by the pomp and vanity of royalty, had its culmination in his influencing the Assembly to build a palace which cost the Province Twenty Thousand Pounds. The truth seems to be that he could have settled the Regulation troubles without force had he desired to do so. This he did not desire to do, but, on the contrary, desired the Regulators should proceed to violence, which would give him a pretext to bring an army into the fields. His first army for this purpose was officered in September, 1768, when he undertook the Hillsborough Expedition against the Regulators; but his promises to their requests for an amicable adjustment of their grievances satisfied them, and they left him "to fight the air;" he was disappointed of the desired conflict. The cost of this Hillsborough expedition was something more than 120,000 pounds sterling. His next army was not put in the field until April, 1771, but he began preparing for it more than twelve months before by having the Johnson Act passed, which was only to be in force for one year, and no longer, during which time he realized that the Regulators would take up arms against the Government, knowing that they would no longer submit to the extortion and oppression practiced by all the officers of the Government, from himself down. After having the necessary laws passed for this campaign and the troops drilled and in readiness, he by no means proposed "to fight the air" (again) this time, so he held his troops back until it was certain there would be substantial men in his front, and not merely "the air." The expense of this expedition cost the taxpayers of the Province more than 140000 pounds sterling. From the tenor of his correspondence generally, it would seem he was steadily looking forward to his marching against the Regulators, and, from his correspondence just before the Legislature met in 1770, it would seem he was eagerly on the hunt for matter with which to aggravate that body into passing a Johnson Act of some sort. Certainly, too, when in March, 1771, he ordered the judges to attend the approaching term of Hillsborough court, it would seem he desired to make sure of further violence, and to use the words of one of the judges, "was not unwilling to sacrifice his judges to increase the guilt of his enemies." Either that, or he utterly discredited the reputed violence of the Regulators.
He was a fine writer, too, and a fearless one, and wrote with much force and elegance, indulging at times in smoothly polished impertinence, very thinly veiled, in his correspondence with the home Government. But, to do Tryon full justice, we must bear in mind that modern ideas of the just relations between the People and their Governors today are very different from the ideas of one hundred and fifty years ago. Fanning, too, at an early day seems to have gotten an influence over him; so baneful, indeed, was it, that from the day it was acquired it was full of evil, and evil only, to the Province. As we have just stated, heavy appropriations had great attractions for him, for he was reckless and extravagant in the expenditure of public money. The four appropriations above mentioned cost the taxpayers of the Province of North Carolina $500,000 during the period of six years of his incumbency as Governor.
He was evidently a man of complex nature, in which force and diplomacy and mere foppery, perhaps, contended for the mastery; and, too, while ordinarily an amiable man, when his blood was up he was as merciless as a wild beast. The wanton hanging of the lunatic Few, in cold blood, and without any form of trial, the morning after the battle of Alamance, when all pretense of resistance was at an end, showed both the cruelty of the man and the domination Fanning had over him, and the manner in which he ravaged the country of the Regulators after they were vanquished was worthy of a Cumberland in olden times or a Sherman in modern. Equally cruel was the infliction of two hundred and forty lashes upon a man whose greatest crime was writing an "impudent letter" to "Lady" Tryon. Nor, in this regard, was his course in New York any better. Sabine, in his "Sketches of the American Loyalists," paints him in very black colors. He says that in 1777, when Governor of New York, Tryon declared that if he had more authority, he would "burn every committeeman's house within his reach," and that he would "give twenty-five silver dollars for every acting committeeman delivered up to the King's troops;" that when Fairfield was burned, Mrs. Burr, a lady of great dignity of character, and possessed of most of the qualities which give distinction to her sex, resolved to remain in her dwelling, and, if possible, to save it from the flames. She made personal application to Tryon to spare it, but he answered her not only incourteously, but rudely, brutally, and with vulgarity, and when a soldier attempted to rob her of her watch, he refused to protect her, and that at the burning of Norwalk he seated himself in a chair on GraMmond Hill and calmly enjoyed the scene.
Among the valuable property destroyed in the Norwalk fire was a valuable library of one thousand volumes and the household property of Haynes Fitch, granduncle, prefixed by several greats, of the author of this volume. This house and the library was converted into ashes, as well as his grain, which was being harvested; that which had been cut, but not bound in the bundles, was spared; as Haynes Fitch said, the day before, expecting the British to burn it: "If they wanted to burn it they would have to gather it up and stack it." Consequently his was the only crop of wheat not entirely destroyed during the Norwalk fire on July 11, 1779.
The Hon. William L. Saunders, editor of the Colonial Records of the State of North Carolina, in speaking of Tryon, says that he, like Fanning, was immensely wealthy when he left the Province of North Carolina. This is easy to understand, if he, like Fanning, extorted and oppressed on every opportunity. (See Vol. VIII. Colonial Records, Prefatory Notes.)
In substantiating the fact of Tryon's ambitions in a military line and his desire for the pomp and aggrandizement of military honors, we will quote from a letter of his to the Earl of Hillsborough, Williamsburg, 8th July, 1769:
Herein we learn unmistakably that promotion in a military line, Tryon being a soldier by profession, was the ultimate end and aim of his earthly aspirations and the goal toward which all his aims and efforts tended.
When Governor William Tryon left his ornate Palace in New Bern in 1768 and rode at the head of his staff to Hillsborough to quell the disturbances attributed to the Regulators that had been taking place in Orange County, he summoned the colonial militia to assemble fully armed to enforce his commands. The troops were bivouacked in the town for several days, one of which was the Sabbath. On that occasion, the Governor ordered sermons to be preached in the encampment, and the Reverend Henry Pattillo, a Presbyterian, and the Reverend George Micklejohn, rector of St. Matthew's Parish of the Church of England, were selected for this assignment.
The sermon of the Anglican minister has been preserved, and is a fiery deununciation of any type of rebellion against the royal authority. Doubtless it pleased the governor, as he later had it printed and sent copies of it to England, but it probably was less pleasing to the Regulators, for the clergyman emphatically said:
Micklejohn then predicted a fearful penalty for those who disobeyed the authority of the Crown:
Despite this sentence of doom, the Regulators continued to press toward their goal, and one of their most prominent leaders, Herman Husbands, composed a satirical sermon which was printed and circulated, and doubtless caused considerable merriment to those who read it. Basing his discourse on the Biblical text from Genesis 49: 14-15, and 21, which reads,
Husband continued in this satirical vein:
It is only reasonable to assume that not only the Regulators, but all North Carolinians who read the ironic remarks of Husbands, were well aware of the challenge it contained to defend their rights and strive to obtain their liberty. The Reverend David Caldwell, a Presbyterian minister at Alamance and Buffalo churches and the founder and head of Caldwell's Log College, was keenly interested in the War of the Regulation. His congregations included many Regulators, and the clergyman sympathized with them in an effort to .prevent the battle which took place there. He later went to Hillsborough to beg for the pardon of those doomed to hang, although his efforts were of no avail against the determined governor. Refusing to yield to defeat, Caldwell then influenced his parishioners from his pulpit by his denuciations of the royal government. He declaimed:
Dr. Caldwell then plainly pointed out the course he thought the patriots should take:
Thus was the clergy drawn into the War of the Regulation and their statements, which fortunately have been preserved, are ample evidence of their sentiments. Micklejohn threw out a challnge in his mandate to obey the Crown implicitly and without question; Husband and Caldwell replied to him that the rights of human beings to enjoy liberty was greater than the privileges of any king. In this particular, as in many other ways, did the Regulators and their associates help to inspire the American Revolution.
Bassett, John S. The Regulators of North Carolina (1765-1771). Ann. Rep. Amer. Hist. Assoc., Washington, DC, 1895
Caruthers, E.W. A Sketch of the Life and Character of the Rev. David Caldwell. Swaim & Sherwood, Greensborough, N.C., 1842.
Fitch, William E. Some Neglected History of North Carolina. New York, NY, 1905.
Foote, William Henry. Sketches of North Carolina. Robert Carter, New York, NY, 1846 (1912 Reprint)
Haywood, Marshall DeLancey. Governor William Tryon and his Administration in the Province of North Carolina 1765-1771. Edwards & Broughton Co., Raleigh, NC, 1958 (original 1908).
Lazenby, Mary Elinor. Herman Husband. A Story of His Life 1724-1795. Old Neighborhood Press, Washington, DC, 1940.
Merrill, William Earnest. Captain Benjamin Merrill and the Merrill Family of North Carolina. 1935
Morehead, Joseph M. Life and Times of James Hunter. Guilford Battle Ground Co., Greensboro, NC, 1897.
Powell, William S., Huhta, James K., and Farnham, Thomas J. (compilers). The Regulators in North Carolina. A Documentary History 1759-1776. State Dept. of Archives and History, Raleigh, NC, 1971.
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