Online Library of Liberty

A collection of scholarly works about individual liberty and free markets. A project of Liberty Fund, Inc.

Advanced Search

Jack P. Greene, Exploring the Bounds of Liberty: Political Writings of Colonial British America from the Glorious Revolution to the American Revolution. Vol. 2 (1734-1755) [2018]

Greene 1670 02 tp
Title Page
Greene 1670 02 toc
Original Table of Contents or First Page

Edition used:

Jack P. Greene, Exploring the Bounds of Liberty: Political Writings of Colonial British America from the Glorious Revolution to the American Revolution. Edited and with an Introduction by Jack P. Greene and Craig B. Yirush. Latin translations by Kathleen Alvis (Indianapolis: Liberty Fund, 2018). Vol. 2 (1734-1755). https://oll.libertyfund.org/titles/2785

Available in the following formats:
HTML 2.5 MB This version has been converted from the original text. Every effort has been taken to translate the unique features of the printed book into the HTML medium.
Simplified HTML 2.5 MB This is a simplifed HTML format, intended for screen readers and other limited-function browsers.
LF Printer PDF 3.71 MB This text-based PDF was prepared by the typesetters of the LF book.

About this Title:

Exploring the Bounds of Liberty is a 3 vol. collection which presents a rich and extensive selection of the political literature produced in and about colonial British America during the century before the American Revolution (1687-1774). Vol. 2: 29. William Smith, Mr. Smith’s Opinion Humbly Offered to the General Assembly of the Colony of New-York (New York, 1734) to 52. “Veridicus” [Thomas Frearon], The Merchants, Factors, and Agents Residing at Kingston, Complainants, Against the Inhabitants of Spanish-Town (London, 1755).

Copyright information:

The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

Fair use statement:

This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

Table of Contents:

Edition: current; Page: [i]
Exploring the Bounds of Liberty
Edition: current; Page: [ii] Edition: current; Page: [iii]
Exploring the Bounds of LIBERTY
Political Writings of Colonial British America from the Glorious Revolution to the American Revolution
volume ii
Edited and with an Introduction by Jack P. Greene and Craig B. Yirush
Latin Translations by Kathleen Alvis
liberty fund
Edition: current; Page: [iv]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

lf1670-02_figure_001.jpg

The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 bc in the Sumerian city-state of Lagash.

Compilation, introduction, translations, editorial matter, and index © 2018 by Liberty Fund, Inc.

Front: “Vintage engraving of Boston Harbour showing the Dartmouth, which was one of the ships boarded during the Boston Tea Party, a political protest by the Sons of Liberty in Boston, a city in the British colony of Massachusetts, against the tax policy of the British government and the East India Company, which controlled all the tea imported into the colonies.” Used by permission © iStock.com/duncan 1890.

Spine: Library of Congress, dated 1758: “A general map of the middle British colonies in America: Viz. Virginia, Maryland, Delaware, Pensilvania, New-Jersey, New-York, Connecticut, and Rhode-Island: Of Aquanishuonigy the country of the Confederate Indians comprehending Aquanishuonigy proper, their places of residence, Ohio and Tuchsochruntie their deer hunting countries, Couchsachrage and Skaniadarade, their beaver hunting countries, of the Lakes Erie, Ontario, and Champlain, . . . exhibiting the antient and present seats of the Indian nations.” Used by permission.

All rights reserved

Printed in the United States of America

17 18 19 20 21 22 c 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data

Names: Greene, Jack P., editor. | Yirush, Craig, 1968– editor.

Title: Exploring the bounds of liberty : political writings of colonial British America from the Glorious Revolution to the American Revolution / edited by Jack P. Greene and Craig B. Yirush with an introduction by Jack P. Greene ; Latin translations by Kathleen Alvis.

Description: Carmel, Indiana : Liberty Fund, Inc., 2018. | Includes index. Identifiers: LCCN 2017026534 | ISBN 9780865978997 (hardcover : alk. paper) Subjects: LCSH: United States—Politics and government—To 1775—Sources.

Classification: LCC E195 .E97 2018 | DDC 973.3—dc23

LC record available at https://lccn.loc.gov/2017026534

liberty fund, inc.

11301 North Meridian Street

Carmel, Indiana 46032-4564

Edition: current; Page: [v]

Contents

  • Introduction xi
  • Editors’ Note xxi
  • Translator’s Note xxiii
  • Acknowledgments xxv
  • volume i
    • 1. William Penn, The Excellent Priviledge of Liberty and Property (Philadelphia, 1687) 3
    • 2. [John Palmer], The Present State of New England (Boston, 1689) 47
    • 3. Gershom Bulkeley, The People’s Right to Election (1689) 95
    • 4. [Edward Littleton], The Groans of the Plantations (London, 1689) 115
    • 5. [Edward Rawson], The Revolution in New England Justified (1691) 147
    • 6. John Montague, Arguments Offer’d to the Right Honourable the Lords Commissioners (1701) 195
    • 7. [Thomas Hodge], Plantation Justice, London (1701) 215
    • 8. “An American” [Benjamin Harrison], An Essay upon the Government of the English Plantations on the Continent of America (London, 1701) 227
    • 9. [William Penn], The Allegations Against Proprietary Government Considered (1701) 279 Edition: current; Page: [vi]
    • 10. Reflections on the Printed Case of William Penn, Esq., in a Letter from Some Gentlemen of Pensilvania (1702) 287
    • 11. Anonymous, A Letter from a Merchant at Jamaica to a Member of Parliament in London (London, 1709) 297
    • 12. Anonymous, Truth Brought to Light (London, 1713) 313
    • 13. Anonymous, Some Instances of the Oppression and Male Administration of Col. Parke (1713) 327
    • 14. Samuel Mulford, Samuel Mulford’s Speech to the Assembly at New-York [New York, 1714] 345
    • 15. [Robert Hunter], Androboros: A Biographical Farce in Three Acts [New York, 1714] 355
    • 16. [James Spence and Roderick MacKenzie], The Groans of Jamaica (London, 1714) 395
    • 17. [William Gordon], A Representation of the Miserable State of Barbadoes (London, 1719) 463
    • 18. Elisha Cooke, Mr. Cooke’s Just and Seasonable Vindication (Boston, 1720) 485
    • 19. Anonymous, A True State of the Case between the Inhabitants of South Carolina, and the Lords Proprietors of That Province [London, 1720] 499
    • 20. Jeremiah Dummer, A Defence of the New-England Charters (Boston, 1721) 509
    • 21. [Samuel Cranston and] R. Ward, A Vindication of the Governour and Government of His Majesty’s Colony of Rhode-Island (Newport, 1721) 551
    • 22. David Lloyd, A Vindication of the Legislative Power (1725) 561
    • 23. James Logan, The Antidote (1725) 573
    • 24. John Bulkley, “Preface” in Roger Wolcott, Poetical Meditations (New London, 1725) 595 Edition: current; Page: [vii]
    • 25. J. N., The Liberty and Property of British Subjects Asserted (London, 1726) 629
    • 26. Daniel Dulany, The Right of the Inhabitants of Maryland to the Benefit of the English Laws (1728) 649
    • 27. “Amicus Reipublicae,” Trade and Commerce Inculcated ([Boston], 1731) 677
    • 28. “A Sincere Lover of Virginia” [Sir William Gooch], A Dialogue (Williamsburg, 1732) 725
  • volume ii
    • 29. William Smith, Mr. Smith’s Opinion Humbly Offered to the General Assembly of the Colony of New-York (New York, 1734) 743
    • 30. Joseph Murray, Mr. Murray’s Opinion Relating to the Courts of Justice in the Colony of New-York (New York, 1734) 809
    • 31. Sir John Randolph, The Speech of Sir John Randolph, upon His Being Elected Speaker of the House of Burgesses (Williamsburg, 1734) 869
    • 32. [“Americanus”], Letter to the Freeholders and Other Inhabitants of the Massachusetts-Bay (Newport, 1739) 875
    • 33. [Maurice Moore], A True and Faithful Narrative of the Proceedings of the House of Burgesses of North-Carolina (Williamsburg, 1740) 887
    • 34. [William Douglass], A Discourse Concerning the Currencies of the British Plantations in America (Boston, 1740) 933
    • 35. Thomas Baxter, A Letter from a Gentleman at Barbados to His Friend (London, 1740) 979
    • 36. Samuel Chew, The Speech of Samuel Chew, Esq. (Philadelphia, 1741) 1005 Edition: current; Page: [viii]
    • 37. “Remarks on the Maryland Government and Constitution,” American Magazine (1741) 1021
    • 38. [Jonathan Blenman], Remarks on Several Acts of Parliament (London, 1742) 1049
    • 39. Thomas Stephens, The Hard Case of the Distressed People of Georgia (London, 1742) 1117
    • 40. [Edward Trelawny], An Essay Concerning Slavery (London, 1746) 1131
    • 41. Samuel Nevill, Mr. Nevill’s Speech to the House of Representatives of the Colony of New-Jersey (New York Weekly Post Boy, May 19, 1746) 1165
    • 42. “A Freeholder,” “A Native of Maryland,” “Americano-Britannus,” “Philanthropos,” and Anonymous (Maryland Gazette, 1748) 1185
    • 43. [Archibald Kennedy], An Essay on the Government of the Colonies (1752) 1261
    • 44. Anonymous, The Voice of the People (Boston, 1754) 1293
    • 45. [Landon Carter], A Letter from a Gentleman in Virginia to the Merchants of Great Britain (London, 1754) 1301
    • 46. George Frye, The Case of Capt. George Frye (London, 1754) 1323
    • 47. Anonymous, A Short Account of the Interest and Conduct of the Jamaica Planters (London, 1754) 1359
    • 48. Stephen Hopkins, A True Representation of the Plan Formed at Albany, for Uniting All the British Northern Colonies (Newport, 1755) 1371
    • 49. “Philolethes” [Samuel Ward], A Short Reply to Mr. Stephen Hopkins’s Vindication (Newport, 1755) 1391
    • 50. [William Smith], A Brief State of the Province of Pennsylvania (London, 1755) 1399
    • 51. Anonymous, An Answer to an Invidious Pamphlet, Intituled, A Brief State of the Province of Pennsylvania (London, 1755) 1421 Edition: current; Page: [ix]
    • 52. “Veridicus” [Thomas Frearon], The Merchants, Factors, and Agents Residing at Kingston, Complainants, Against the Inhabitants of Spanish-Town (London, 1755) 1477
  • volume iii
    • 53. [William Livingston], An Address to His Excellency Sir Charles Hardy (New York, 1755) 1541
    • 54. Daniel Fowle, A Total Eclipse of Liberty (Boston, 1755) 1555
    • 55. J.W., A Letter from a Gentleman in Nova-Scotia, To a Person of Distinction on the Continent ([London], 1756) 1579
    • 56. T[homas] W[right] and [William Wragg], Letters to the South Carolina Gazette (May 13, June 5, 1756) 1589
    • 57. [Landon Carter], A Letter to a Gentleman in London, from Virginia (Williamsburg, 1759) 1613
    • 58. Richard Bland, A Letter to the Clergy of Virginia (Williamsburg, 1760) 1637
    • 59. [Joseph Galloway], A Letter to the People of Pennsylvania (Philadelphia, 1760) 1659
    • 60. James Otis, A Vindication of the Conduct of the House of Representatives of the Province of the Massachusetts-Bay (Boston, 1762) 1679
    • 61. Massachusetts House of Representatives: Instructions to Jasper Mauduit (June 15, 1762) 1723
    • 62. John Camm, A Single and Distinct View of the Act, Vulgarly Entitled, The Two-Penny Act (Annapolis, 1763) 1737
    • 63. Richard Bland, The Colonel Dismounted: Or the Rector Vindicated (Williamsburg, 1764) 1777
    • 64. John Dickinson, A Speech, Delivered in the House of Assembly of the Province of Pennsylvania (Philadelphia, 1764) 1835 Edition: current; Page: [x]
    • 65. Joseph Galloway, The Speech of Joseph Galloway, Delivered in the House of Assembly, of the Province of Pennsylvania (Philadelphia, 1764) 1869
    • 66. “An American” [Arthur Lee], An Essay in Vindication of the Continental Colonies of America (London, 1764) 1933
    • 67. [Nicholas Bourke], The Privileges of the Island of Jamaica Vindicated (London, 1766) 1955
    • 68. [Robert Munford], The Candidates; Or, The Humours of a Virginia Election [1770] 2023
    • 69. Anonymous, Observations upon the Report Made by the Board of Trade against the Grenada Laws (London, 1770) 2053
    • 70. John Gardiner, The Argument or Speech of John Gardiner, Esquire (St. Christopher, 1770) 2085
    • 71. “A Freeman” [John J. Zubly], Calm and Respectful Thoughts on the Negative of the Crown (Savannah, 1772) 2123
    • 72. “A Planter” [Edward Long], Candid Reflections upon the Judgement on What Is Commonly Called the Negroe-Cause (London, 1772) 2149
    • 73. Samuel Estwick, Considerations on the Negroe Cause (London, 1773) 2193
    • 74. A Member of the Assembly [John Day], An Essay on the Present State of the Province of Nova-Scotia [Halifax, 1774] 2231
    • 75. Anonymous, Considerations on the Imposition of 4½ Per Cent; Collected on Grenada, Without Grant of Parliament (London, 1774) 2249
  • Index 2269
Edition: current; Page: [743]

Exploring the Bounds of Liberty

29: William Smith, Mr. Smith’s Opinion Humbly Offered to the General Assembly of the Colony of New-York (New York, 1734)

William Cosby arrived in New York to assume the governorship in August 1732 from Rip Van Dam, who as president of the Council had assumed the administration of the colony upon the death of Governor John Montgomerie in 1731. Cosby and Van Dam quickly got into a legal dispute over Van Dam’s claims to half of the governor’s salary and other income while the latter was acting governor, and, fearful of losing a case against the popular Van Dam in a jury trial, Cosby created an equity court in which he would act as presiding officer to hear the case. This action produced a groundswell of concern from people concerned to prevent Cosby from acting arbitrarily, the inhabitants of three political jurisdictions presenting petitions to the New York Assembly asking for measures that would deprive all governors of the power to establish courts without an act of the legislature. Divided between those who supported and opposed Cosby, the Assembly invited two of New York’s most distinguished lawyers, William Smith and Joseph Murray, to speak to them on this issue and subsequently had both speeches published by the local press. Smith spoke first on June 7, 1734.

A graduate of Yale College and sometime student at the London Inns of Court, Smith displayed impressive learning in constructing his case in favor of the petitioners’ challenge to Cosby’s authority and their contention that Edition: current; Page: [744] only the New York legislature could erect courts in the colony. Citing a long list of English court cases and parliamentary acts to show that British kings could not create a court of equity “without the Consent of the Legislature,” he argued that, inasmuch as New Yorkers, as part of their “Birth-right” as English people, had “the same fundamental Rights, Privileges and Liberties” as “the People of England,” including “a Right to choose the Laws by which we will be governed” and “a Right to be governed only by such Laws” because “Our American abode” had “put no Limitation on these Rights,” no court of equity within the colony could “legally have any Being or Authority, without such Consent” of the provincial legislature. “To affirm this Power in the Crown, without an Act of the Legislature,” he declared, supposed the Crown “to be vested with an Arbitrary Authority over” its American Subjects, with Power to impose New Laws without their Consent; which would be to alter the Constitution, and deprive us of one of the chief Privileges, which we justly glory in, as the Birth-right of English-men.” He urged the Assembly to “prize and value” the liberties and laws New Yorkers had received as “an Inheritance transmitted to us in the Blood of our Fathers.” (J.P.G.)

Edition: current; Page: [745]

Mr. Smith’s

OPINION

Humbly Offered to the

General Assembly

of the

Colony of NEW-YORK,

One {sic} the Seventh of JUNE, 1734

At their Request.

Occasion’d by sundry Petitions of the Inhabitants of the

City of New-York, Westchester County & Queens-County,

to the said General Assembly, praying an Establishment of

COURTS of JUSTICE within the said Colony by Act of

the Legislature.

Published at the Request of the said General Assembly.

Major Haereditas venit unicuiq; nostrum a Jure & Legibus, quam a Parentibus:1

Cicero. 2 Inst. 56.

Printed and Sold by William Bradford in the City of New-York, 1734.

Edition: current; Page: [746]

Mr. Smith’s Opinion, relating to Courts of Equity within the Colony of New-York, Humbly offered to the General Assembly of the said Colony, at their Request, on the Ninth of June, 1734.

That the Reader may the better understand the Purport of the ensuing Opinion, it may not be amiss to give some account of the Occasion of it, and the Matters to which it refers; which are briefly these, viz. Sundry Inhabitants of the City of New-York, having presented their Petition to the Honourable, the General Assembly of the Province of New-York,

Humbly shewing, That the said Petitioners being Inhabitants of the Province of New-York, part of the Dominions of Great Britain, they did take themselves to be entitled to the Liberties of English-men.

And they also alledged,

That it is well known, that the Fees of the Lawyers, and all the Officers of the Government are settled by Ordinance of the Governour and Council only and not by Act of the Legislature, as they ought to be by the Laws of England: And that the Courts are not established by Act of Assembly, as by the Laws of England they also ought to be, especially the Court of Equity, lately erected in the Supreme Court of this Province, which they take to be a Grievance, and destructive to the Liberties of the People, as it is now constituted. And they the said Petitioners, did thereby humbly pray Relief in the Premisses, which they were induced to hope, would be speedily given, their Honours having (some time since) Resolved, That the erecting Courts of Equity, without consent in General Assembly, was Illegal, and an infringement on the Liberties of the Subject; they therefore pray’d their Honours, that they would settle the Fees of the Lawyers, and Officers of the Government, and the Courts of Justice, by an Act or Acts of the General Assembly, in such manner as their Honours should judge to be most conducive, to preserve the Liberties and Properties of his Majesty’s Subjects, from any Encroachment, and their Petitioners, as in duty bound, would ever pray.

There were Petitions of the like Import from the County of Westchester, and Queens-County, which, as appears by the printed Proceedings of the Edition: current; Page: [747] House, were (according to Order) taken into Consideration on Friday the 31st of May, 1734, and after some Debate on that part which relates to the Courts of Justice (a Bill having been ordered on the 23d of the same Month, to be brought in for the Regulating and Establishing of Fees) it was Resolved, That the further Consideration of the same should be referred to Friday then next following; and that Mr. Murray and Mr. Smith should be desired to attend at that time, for the further Information of the House, upon the subject Matter thereof. Upon which Day, the House being informed, that Mr. Murray and Mr. Smith did attend without, it was Resolved, That they should be heard, on the subject Matter of the three Petitions mentioned, on the 31st of May last, and be desired, that they would, on that part which relates to Courts of Justice, give their real Opinion, Candidly, Sincerely, and upon Honour; and that none of the Members should interfere or interrupt them therein. Then the Gentlemen above-named were called in, and the Doors opened for all Auditors. The several Members being first seated in their Places, the Petitions were read, and the Speaker having opened the importance of them, asked Mr. Murray and Mr. Smith, Whether they were prepared to inform the House of their real Opinion, on the subject Matter above-mentioned, which he desired might be done candidly, sincerely, and upon honour? Whereupon Mr. Smith said to this effect,

Mr. Speaker;

I Shall deliver my Opinion on the Questions arising on these Petitions, with all that sincerity which is desired. The value which this House has put upon it, adds to the weight of Obligation, that I lye under so to do. I am convinc’d that the Matter of the Petitions is of that Consequence and Importance to the Welfare of this Colony, which you are pleased to mention; and tho’ the little time allowed me, and the continual Interruptions I have met with, from the ordinary course of my Business, has not permitted me to be so well prepared as I cou’d have wish’d to have been; yet having for some years past, had occasion, either in matters which concerned my self or others, to study the Points that are now under Consideration, I shall therefore, without any delay, acquit myself of the Duty with which this House has honour’d me, by giving you my Opinion, with all that Freedom and Impartiality which the Importance of the Case, and nature of the Trust, which this House has reposed in me, does require.

Edition: current; Page: [748]

I think, Sir, the whole Matter of the present Debate, will resolve it self into this double Enquiry,

  • 1. Whether the King can, in England, erect a Court of Equity without the Consent of the Legislature?
  • 2. If not, then Whether a Court of Equity within this Colony, can legally have any Being or Authority, without such Consent?

The Answer to these Questions, together with what I take to be the Reason of the Law in the case, will comprehend the whole of what I have to offer on this Occasion.

First, then, I conceive that the King cannot erect a Court of Equity in England, without the Consent of the Legislature there.

That the Law is clearly so, appears to me from the Opinion of some of the greatest Lawyers of the English Nation, sundry ajudged Cases expresly in Point, and several Acts of Parliament, which either suppose or declare it.

Sir Edward Coke, who was Lord Chief Justice of England in the Reign of King James the First, whose great Learning has dignified him with the Stile and Title of The ORACLE OF LAW, treating of the Court of Equity before the Mayor of London, Notes,[1] “That a Court of Equity may be had by Prescription, but cannot be raised by Grant.” And treating concerning the Court of the President and Council in the Dominion and Principality of Wales, he says,[2] “A Commission without an Act of Parliament, cannot raise a Court of Equity.”

Sir Henry Hobart, who was Lord chief Justice of the Common Pleas, in the Reign of the same King, in the case of Martin against Marshal and Key,[3] says,

That the King cannot grant any thing in derogation of the Common Law, but tenere placita, that is, to hold Pleas according to the course of the Common Law, may be granted.

He afterwards adds,

That all Kingdoms in their Constitution, are with the Power of Justice, according to Law and Equity, which being in the King, as Sovereign, were Edition: current; Page: [749] after settled in several Courts, as the Light being first made by God, was after setled in the great Bodies of the Sun and Moon. But that part of Equity being opposite to regular Law, and in a manner an Arbitrary disposition, is still administred by the King himself, and his Chancellor, in his Name, ab initio,2 as a special Trust committed to the King, and not by him to be committed to any other.

Sir Matthew Hale, who was first Chief Baron of the Exchequer, and afterwards Lord Chief Justice of England, one of the greatest Men that ever adorn’d the Law, or grac’d the Bench[4] speaking of the King’s temporal Jurisdiction, says,

It consists, first, in erecting Courts by his Great Seal, so that they be Courts of Common Law; for a Court of Equity cannot now be erected, but by Act of Parliament.

Hence it appears that these great Men, all agree, That without an Act of Legislature, the King cannot erect a Court of Equity. There are many Books which confirm the same Doctrine, which I need not mention, save only the two following.

Wood in his Institutes, 460. says, “That No Court of Equity can be erected by Grant or Commission, but must be held by virtue of Prescription or Act of Parliament.” And Lilly[5] says,

That a Court that holds Plea by virtue of Letters Patent, ought to proceed according to the course of the Common Law; for No Patent ought to be granted against the course of the Common Law.

These two last mention’d Writers I do not rely on, as having any original Authority; all the credit they have with me, consists in their Conformity to either adjudged Cases, or the Writings of those Learned Men, whose Works they Transcribe.

I pass from the Opinions of great Lawyers to adjudged Cases, which serve to confirm the same Doctrine. Thus in the Kings Bench, in Michaelmass Term, in the 26 and 27 years of the Reign of Queen Elizabeth[6]

Edition: current; Page: [750]

in a Premunire3 between John Perrot, Plaintiff, and T. M. H. W. and others, Defendants; it was Resolved by Sir Christopher Wray, Chief Justice, and the Court of Kings Bench, That the Queen cou’d not raise a Court of Equity, by her Letters Patents; and that there cou’d be No Court of Equity, but by Act of Parliament, or by Prescription, Time out of Mind of Man.

This my Lord Coke[7] mentions, as one of those Cases.

Which upon great and mature Deliberation, had been resolved, by the Judges of the Realm; and whereunto he was Privy, and well acquainted with; which he thought good to report, and publish for the better Direction, in like Cases thereafter.

My Lord Coke in the Margin takes Notice, that the above Resolution, was against the Court of Requests; with relation to which,[8] he informs us,

That in the Reign of Hen. 8. the Masters of Requests thought (as they intended) to strengthen their Jurisdiction by Commission to hear and determine Causes in Equity. But these Commissions being not warranted in Law (for no Court of Equity can be raised by Commission) soon vanished; for that it had neither Act of Parliament nor Prescription, time out of Mind of Man to establish it.

Another adjudged Case which I find, was in the Court of Common Pleas, in Trinity Term, in the sixth Year of King James.[9] This Case was adjudged, with respect to the Court before the President and Council in the North; which my Lord Coke says, “Was neither warranted by Act of Parliament, nor by Prescription”; but raised by Commission, issued by King Hen. 8. for the Suppression of the Tumults, and Insurrections, which were occasioned by the Dissolution of the Monasteries. In which Commissions, there was a Power, to hear and determine certain Offences therein specified, according to the Law and Custom of the Kingdom of England, “vel aliter secundum sanas discretiones vestras,” That is, or Otherwise according to your sound Discretions. Whereupon my Lord Coke observes, that it was Resolved by all the Edition: current; Page: [751] Judges of the Court of Common Pleas, that this Clause is against Law, as the like had been formerly often resolved. There was also in the same Commission, a Power to hear and determine Actions real and personal, in like manner, according to the Laws of England, or otherwise, according to their sound Discretions; but my Lord Coke takes Notice, that it was then also clearly resolved, that this latter Clause, to enable them to hear and determine according to their Discretion, was against Law, not only for the Cause aforesaid, but also, for that Actions, real and personal, were not to be heard and determined by Commission; but according to the Laws of the Realm.

Another Resolution which I find in Point, was, in the Court of Chancery in the 11th of King James, in the Earl of Derby’s Case,[10] In that Case, among other Things, it was resolved by the Lord Chancellor, and by the Chief Justice of England, the Master of the Rolls, Justice Dodderidge and Justice Winch, whom the Lord Chancellor called to be his Assistants, “That the King cannot make any Commission to hear and determine any Matter of Equity.” Thus be the Judgments of the three greatest Courts of Westminster; the King by his Letters Patent or Commission cannot erect a Court of Equity. But that he may do it by Consent in Parliament, I believe never yet was made a Question.

I come now to the third ground of my Opinion on this Head; and it is taken from Acts of Parliament, which either imply or declare, That the King by his sole Authority cannot erect any Court of Equity.

First, Because all those Courts, whose Jurisdiction in Equity have been allowed; had their Authority by Prescription, before the Time of Memory; or if within the Time of Memory, they have their whole Power by Act of Parliament: And even those Courts, which existed before Time of Memory, have always been under the Check and Controul of the Parliament, and have had their Powers enlarged, restrained or confirmed by Acts of Parliament, as will appear from a Variety of Instances.

First, With respect to the high Courts of Chancery; I think it is generally agreed, that originally the Chancery was no more than an Officium or Officina Brevium, an Office or Shop of Writs; to which the Subject might go to purchase such Writs as his Case required, and the Law would allow him; upon which Writs so purchased, not the Chancery, but other Courts, did proceed to relieve the Subject. Many of our Saxon Kings had Chancellors, Edition: current; Page: [752] as my Lord Coke makes evident;(a) as also does Sir Hen. Spelman; (Gloss sub verbo Chancellerius4) But Mr. Selden, in his Historical and Political Discourses of the Laws of England, under the Reigns of Ed. 3. & Rich. 2. published by Nicholas Bacon Esq; (Page 23) says, this Great Man (meaning the Chancellor) at the first, was no better than a Register, or the King’s Remembrancer or Secretary. And he doubts whether the Chancery had attained the Title of a Court, so early as King Stephen’s Time, contrary to the Opinion of my Lord Coke,(b) who supposes it was a Court in the Time of K. Etheldred, whose Reign began in the Year 978. He takes Notice, that my Lord Coke founds his Opinion on a Testimony cited out of the History of Ely, which Mr. Selden thinks(c) will not warrant it; for a Reason which he there gives; and observes that Fleta who wrote in later Times, calls it not a Court but an Office; his Words are, Est Inter caetera quoddam Officium quod dicitur Cancellaria.5(d) Nevertheless says Mr. Selden,

It is clear that these Times (To wit, the Reigns of Edward the 3d. and Richard 2.) brought it to that Condition, that it might carry that Name, if formerly it had it not. For it grew very fast, both in Honour and Power; and this not by Usurpation (tho it did exceed) but by express Donation, from the Parliament. Yet (says he) is this Power much darkned in the Limits and Extent of it, chiefly in regard, that the Chancellor is intrusted with many Things, whereof there is no Evidence for the Chancery to claim any Cognizance.

Then he takes Notice of sundry Acts of Parliament, in those Reigns, granting Power to the Chancery; so that (says he) “It is clear enough, that the Parliament intended, that it should be a Court, and gave their Seal to its Power of Judicature.” In this Part of his Discourse, this Author seems to confine himself to the legal Powers of the Chancery; whereby, as my Lord Coke(e) says, “The Lord Chancellor or Lord Keeper, proceeds according to the right Line of the Laws and Statutes of the Realm.” But afterwards, he Edition: current; Page: [753] takes Notice, that it had even at that Time an Equity Power likewise, and with respect to both the one and the other, he observes, that the Power of Judicature in those Days, did not rest in the Breast of one Chancellor, but in him jointly with other Council of the King; who were also learned Judges of the Law: which Observation he confirms by an Instance there given (Page 22, and several Authorities in the Margin) and adds, That the same is more evident, by the Title of Bills in those Times, exhibited in the Chancery; which were directed to the Chancellor, and the King’s Council, & the Rule given per tout les Justices, that is, by all the Justices.

Upon the whole it appears evidently, that it was the Opinion of this very learned Antiquary, that in the Reigns of Edward 3, and Richard 2. the Chancery had the Title of a Court, and at that Day was more than a Shop of Writs, and that it had a Jurisdiction, both according to the Course of the Common Law, and a Course of Equity; but the precise Time, when the Jurisdiction of either began, is left by him incertain.

My Lord Coke(f) treating of the legal Jurisdiction of the Courts of Chancery(g) observes, That the Stile of the Kings Bench is Coram Rege, that is, before the King, and the Stile of this Court of Chancery is Coram Rege in Cancellaria et additio probat Minoritatem; that is, before the King in the Chancery, and the addition proves its Minority. From whence it would seem, that it had its Juisdiction later than the Court of Kings Bench; and he plainly declares it to be subordinate to it, in that upon a Judgment given in this Court, a Writ of Error lyes returnable into the Kings Bench, and he hints at what seems to be good Reason why it should be so, because in this Court the Lord Chancellor or the Lord Keeper, is the sole Judge; and in the Kings Bench there are four Judges at the least. However, tho’ this seems to prove, that the Chancery had its legal Power or Authority later, in time, than the Kings Bench, yet it proves not the Date of the Jurisdiction of either, nor how that Court at first acquired, nor when it first exercised its Equity Jurisdiction. But my Lord Coke in his Exposition of the Statute called Articuli super Chartas,6 made in the 28th year of King Edward the first, lays it is mainly opposed, that at that Time (to wit, the 28th year of that King) the Chancellor had No Court of Equity, but only a Court of Record of Ordinary Edition: current; Page: [754] Jurisdiction, according to the course of the Common Law, and quotes the Authority of Mr. Lambert, who (he says) “was a Master in Chancery, and had the keeping of the Records of the Tower,” and had abridg’d many of the Principal of them (which he had seen)

and was well learned, and besides, a great Searcher into Antiquity, who in his Treatise of the Jurisdiction of Courts, saith, That he could not find that the Chancellor held any Court of Equity before Edward the IVth’s Time.—And (says he) he who has advisedly read our Antient Authors

(by which, in the Margin, it appears that he meant Glanvil, Bracton, Britton, Fleta and the Mirror) which speak of the Court of Chancery, will observe, that they all speak of the Ordinary Jurisdiction of the Chancellor, but none of them of a Court of Equity. My Lord Coke proceeds, and says,

That the Book, called, The Diversity of Courts, written in the Reign of Edward the 3d, treateth of the Jurisdiction of the Chancellor, according to his Ordinary Power, but Nothing of that which he holdeth in Causes of Equity. Neither, (says he) shall you find in any Book-case or Reports of the Law, any mention made of any Court of Equity before or in the Reign of Henry V. and yet all of them speak of the Ordinary Power or Jurisdiction of the Chancellor. But in the Reign of Henry VI. and Eward IV. Cases have been reported, where the Chancellor has heard some few Causes in Equity by English Bill.

The same Author afterwards tells us,

That it is thought that this Court of Equity began under Henry Beauford, Son of John of Gaunt, that great Bishop of Winchester, afterwards Cardinal in the Reign of Henry V. and in the beginning of Henry VI. and increased while John Kemp, Bishop of York, and Cardinal, was Lord Chancellor, in the 28 year of Henry VI.

But that it increased most of all when Cardinal Wolsey was Lord Chancellor of England, in the 8th year of Henry 8, and continued until the 21th year of the same King, of whom the old Saying was verified, That Great Men in Judicial Places will never want Authority.

Thus far as to the Rise and Progress of the Court of Chancery, according to my Lord Coke. But tho’ Mr. Lambert, on whom my Lord Coke builds, could not find among the Records in his custody, any Traces of the Antiquity, of Edition: current; Page: [755] the Equity Jurisdiction of the Chancellor, higher than Henry IVth’s Time yet I think it is very evident, from the Accounts given by Mr. Selden, That the Court of Chancery had an Equity Jurisdiction in Edward the 3d’s Time; for it appears that two Acts of Parliament for the Regulation of its Proceedings, were made in the 37 and 38 years of that King. Upon which Mr. Seldon, in his before-mentioned Discourses,(b) writes thus,

It seems (says he) that they, to wit, the Proceedings of the Equity side of the Chancery, had been formerly very Irregular, and that contrary to the grand Charter, upon a bare suggestion in the Chancery, the Party complained of was imprisoned, and no Proceedings made thereupon. For Remedy whereof, it was Ordained,(c) That upon Suggestions so made, the Complainer was to find Sureties, to pursue the Suggestions, and the Process of Law should issue forth against the Party, without imprisoning him; and if the Suggestions were not proved True, the Complainant should incur the like Penalty, that the Defendant should have done, in case he had been found Guilty. But afterwards (says he) this latter clause was altered by another Statute,(d) because it was full of Incertainty; and it was Ordained, That in such case the Complainant shall be imprisoned until he shall satisfie the Defendant of his Damages; and furthermore, shall make Fine and Ransom to the King. But, (says Mr. Selden) Because the Defendant many times held his Advantage even to Extremity, this course lasted not long, but a New Law was made,(e) which put the Power of awarding Damages, in such cases, into the Chancellor, to do according to his Discretion.

From these Statutes, it seems to me, unquestionably certain, That the Equity Jurisdiction of the Chancery must have had its being something earlier than the making of either of them, to wit, sometime before the 37th year of Edward the Third.

Sir Henry Spelman before-mentioned, a very learned Antiquary,(f) speaking of the Chancellor and Chancery, after the Times of the Norman Kings, Edition: current; Page: [756] (who begun in William the Conqueror, Anno 1066. and ended in King Stephen, who died Anno. 1154.) says to this Effect, viz.

That in old Times, the Chancellor held no Court either of Law or Equity. Therefore when the Black Book of the Exchequer, makes mention of the Chancery, under the Reign of Hen. 2. and Bracton, under Hen. 3. they are not to be understood of a Court, but of a Shop of Writs and Royal Charters. In which sense nevertheless (says he) the Author of the now New Narrations seems to have called it a Court, saying, The Court of the Kings Chancery, is the Ordinary Court for issuing the Kings Writs, but not for holding Common Pleas. Moreover (says he) Briton, who has given an exact Account of all the Courts of Justice in England in Ed. the first’s Time, does not speak one Word of this Court, nor any other, that I know of, before the Time of Ed. 3. or about his Time.

A late Writer of a Book, entitled, The Legal Jurisdiction of the Chancery stated, (page 30.) undertakes to fix the Æra of it in the 22th Year of Ed. 3. tho’ he confesses, That there are some Intimations in Books, as if it was earlier in that Reign; and he says, most probably the Chancellors Jurisdiction in Equity, took its publick authoritative Commencement, from a Writ or Proclamation, which he had transcribed from the Original Words on the Roll, and it is in English thus,

The King to the Sheriffs of London greeting; Forasmuch as we are greatly and daily busied, in various Affairs concerning us, and the State of our Realm of England, We will, That whatsoever Business relating as well to the Common Law of our Kingdom, as our Special Grace cognizable before us, from henceforth, be prosecuted as followeth, viz. The Common Law Business before the Arch-Bp. of Canterbury elect our Chancellor, by him to be dispatched; and the other Matters grantable by our special Grace, be prosecuted before our said Chancellor, or our well beloved Clerk the Keeper of the Privy-Seal, so that they, or one of them, transmit to us such Petitions of Business, which without consulting us, they cannot determine, together with their Advice thereupon, without any further Prosecution to be had before us for the same, that upon Inspection thereof, we may further signify to the aforesaid Chancellor or Keeper, our Will and Pleasure therein; and that none other do for the future, pursue such kind of Business before us, We command you immediately upon Sight hereof, to make Proclamation of the Premisses, in those Places, which to you shall seem expedient, in Form aforesaid; and this you must not omit. Edition: current; Page: [757] Witness the King himself, at Langley, 13th Day of January, in the 22d Year of his Reign.

This referring of GRACE to the Chancellor, seems to have laid the Foundation of Equity, in the Court of Chancery, says this Writer; and that after this Time, the Chancellor did exercise a Jurisdiction in Matters of Equity: He infers very justly from Rol. Parl. 45 Ed. 3. No. 24. which is printed in Rolls, 1 Ab. 372. and because that in the Beginning of the next Reign, viz. Rich. 2. Complaints are made in Parliament of the Exercise of this Power, to the Subversion of the Common Law; which Complaints he there cites.

And to the like Purpose also, my Lord Coke tells us(k) {The footnotes in this document skip from “f” to “k.”}

That in the Parliament holden in the 13th Rich. 2. the Commons petitioned, that neither the Chancellor nor other Councellour, do make any Order, against the Common Law. And in the same Parliament another Petition, was, That no Person shou’d appear upon a Writ de quibusdam certis de Causis,7 before the Chancellor, or any other of the Council, where Recovery is given by the Common Law.

Richard the Second, was a very Arbitrary Prince, and it appears, that he gave but slender Answers to these Petitions, and the Remedy not being obtained, therefore we find another Petition from the Commons, in 2d Years of Henry IV. which was,

That no Writs or Privy-Seals, be issued out of the Chancery, Exchequer, or other Places, to any Man, to appear at a Day, upon a Pain, either before the King and his Council, or any other Place, contrary to the ordinary course of the Common Law, whereunto the King answered, that no such Writs should be granted, without Necessity.(l)

But the same Grievance continuing, we find that the Commons renewed their Complaint, and in the 3d Year of Hen. V. petitioned the King,

That all Writs of Subpena, & Certis de Causis going out of the Chancery and the Exchequer, may be enrolled, and not granted of Matters Edition: current; Page: [758] determinable at Common Law, on Pain that the Plantiff do pay by way of Debt to the Defendant Forty Pounds.

Whereunto is answered, The King will be advised, (Id Ibid) But the Grievance still continuing, the Parliament do not cease endeavouring to obtain a Remedy, and my Lord Coke tells us, That in the 9th Hen. V. it is Enacted, to endure until the next Parliament, that the Exception (how that the Party hath sufficient Remedy at the Common Law) shall discharge any Matters in Chancery. And he says, that at the next Parliament, you shall find a Petition in these Words,

No Man to be called by Privy-Seal or Subpena, to answer any Matters but such as have no Remedy by the Common Law; and that to appear so by the Testimony of two Justices of either Bench, and by Indenture between them and the Plaintiff; which Plaintiff shall always appear in proper Person, and find Surety by Recognizance to prosecute with Effect, the Matters of the Bill only; and to answer Damages, if the same fall out against the Plaintiff.

It does not appear that this Petition, then had its desired Effect, yet my Lord Coke Notes thereon, That never good Petition in Parliament dyed, but first or last will take Effect.

And we find, that these Struggles in Parliament, thro’ three successive Reigns, against the Encroachments of this New Power in the Chancery, at length produced an Act, in the 15th year of Henry the 6th, for a perpetual Law, and the true Jurisdiction of this Court, wherein my Lord Coke observes, it is Enacted in these words,

Forasmuch as divers Persons have, before this time, been greatly grieved by Writs of Subpena, purchased for Matters determinable by the Common Law of this Land, to the great Damage of such Persons, so vexed, in subversion and impediment of the Common Law aforesaid, Our Sovereign Lord the King Wills, that the Statutes thereof made, shall be kept after the form and effect of the same; and that no Writ of Subpena be granted from henceforth, till Surety be found to satisfie the party so grieved and vexed, for his Damages and Expences; if so be, that the matter may not be made good, which is contained in the Bill.

In anno 31 Hen. 6. cap. 2. says he, There is a Proviso in these words, “Provided that no Matter determinable by the Law of this Realm, shall be by the said Act determined, in other form than after the course of the same Law, in the Kings Courts, having determination of the same Law.”

Edition: current; Page: [759]

Thus the common Law, in some measure, retrieved its ground, and became the sole Rule and Measure of Justice, in all Matters within its Cognizance, and nothing was left for the Equity Jurisdiction of the Chancellor, but those cases only for which the common Law had not provided any Remedy.

Upon the Whole of what has been said, with respect to the Equity Jurisdiction of this High Court, it seems to me, that the Parliament, in the most early Times, claimed a Right to the moulding and fashioning of it, and actually did give Laws to its Proceedings. And tho’ it did, for three successive Reigns, continually complain of its exorbitant Encroachments; yet at length it put a Bridle upon its Powers, whereby it was hindred from intermeddling with any Matter determinable by the common Laws of the Land. And tho’ it does not appear, that the Equity Jurisdiction of this Court was Originally derived from an Act of Parliament, yet it is very evident, that some part of its Authority, and the true Measure of its Jurisdiction, is wholly owing to the Power of the Parliament.

The same Observations that have been now made, with respect to this Great Court of Equity, before the Lord Chancellor, may be made with respect to all the rest of those Equity Courts, whose Original was before the Time of Memory.

As to the Court of Equity in the Exchequer, It has been doubted whether it had any being before the Reign of Henry the 8th; and my Lord Coke seems to leave it as a Doubt.[1] However this might be, yet it appears, that by the Stat. 33 Hen. 8. cap. 39. That Court had full Power and Authority, where the King’s Debt or Duty is demanded, to discharge the Person, upon Matter in Law, Reason and good Conscience, alledged and proved in Bar of such Demand. From whence it seems, that if it had any being before, yet it wanted an Act of Parliament to strengthen and confirm it.

It is very evident, that the Court of Equity before the Mayor of London, tho’ held by Prescription, yet has been confirm’d by Parliament.[2]

The Court of Equity of the Dutchy of Lancaster, was by Grant, with consent of Parliament, passed in the 10th of Edw. the 2d.[3]

Edition: current; Page: [760]

The Court of Equity before the President and Council of Wales, was strengthened and warranted by an Act of Parliament, in the 24th of Henry the 8th, cap. 26. with reference to a Prescription, which went before it.[4]

The Court of Equity before the Chamberlain of Chester, had a being before Time of Memory; and if it did not at first derive its Authority from the Parliament, yet its Jurisdiction is allowed by the Statute of the 50th of Edward the 3d, which establishes the Dutchy Court of Lancaster, with an express Relation and Conformity to it.[5]

The Equity Courts of the Cinque Ports have Acts of Parliament for them, says my Lord Hobert, in these Reports.[6]

Thus, the most, if not all the Courts of Equity, that have subsisted from beyond the Time of Memory; have had Acts of Parliament to strengthen and support them, which seems to me to imply very strongly, that there was a Necessity for those Acts, and that such a Jurisdiction, tho’ claimed and long used, has not met with full Allowance, till they had an express and known Act of Parliament to warrant them.

This Observation, probably, led my Lord Hobert, in the before cited case, to say,

That he held it to be a great Question, and of great Consideration to be admitted, that a Court of Equity should stand upon Grant or Prescription Only

In the 2d Place, What further convinces me of the Necessity of an Act of the Legislature to give Being and Authority to any New Court of Equity, is, That such New Courts, whose Jurisdiction in Equity have been allowed, have had their Authority from the Parliament; and such as depended upon the King’s Commission or Letters Patent only, have been declared Illegal, and Abolished by Act of Parliament.

An Instance of the First, is, The Court of Augmentations of the Revenues of the Crown of England, this Court was erected by Authority of Parliament, in the 27th of Henry the 8th, and my Lord Coke says, “This Court could not be Erected but by Parliament, because a Chancellor and a Court of Equity were constituted.[7]

Edition: current; Page: [761]

An Instance of the latter kind, is, the Court before the President and Council of the North, The Commission on which it depended was declared to be against Law,[8] as has been observed before. Now this, among several other Courts that had rendred themselves grievous to the Subject, were abolished by the Statute of 16 Car. 1 Cap. 10. by which among other Thing{s}, it is declared, That neither his Majesty, or his Privy Council, have or ought to have, any Jurisdiction, Power or Authority, by English Bill, Petition, Articles, Libel, or any other Arbitrary Way, whatsoever, to examine or draw into Question, determine or dispose of the Lands, Tenements Hereditaments, Goods or Chattles of any of the Subjects of this Kingdom, but the same ought to be tryed and determined, in the Ordinary Courts of Justice, and by the ordinary Course of the Law. This Act is declared to extend, not only to those Courts therein particularly Named, but to all Courts of like Jurisdiction, to be thereafter Erected, Ordained, Constituted or Appointed as aforesaid, &c.

Upon the whole, it seems to me abundantly evident, That inasmuch as all or the most of those Courts, which pretend to have had Authority by Prescription, have had Acts of Parliament to confirm and strengthen them, and those Courts whose Being and Authority commenc’d within later Times, and have had an allowed Jurisdiction, have been erected by the Parliament; and such as had only the King’s Commission to support them, have been declared to be against LAW, and that not only by the concurrent Opinion of some of our most learned judges, who have wrote upon that Subject; But by the express Declaration of others, upon mature Deliberation, in the most solemn Acts of Judicature, and this not in one Court, nor one Case, but in several Cases, in three of the great Courts of Westminster before cited; and if we add to this, the express Declaration of the King, Lords and Commons in an Act of Parliament, that neither his Majesty or his Privy Council, have or ought to have such a Power, and the Courts that have been erected by such Power Only, have been abolished. I say after all this, I may very safely give it as my clear Opinion, That no Court of Equity can now be erected in England, without the Consent of the Legislature, which is my Answer to the first Question.

The second Question is, If the King cannot, in England erect a Court of Edition: current; Page: [762] Equity, without the Consent of the Legislature, then whether a Court of Equity within this Colony, can legally have any Being or Authority without such Consent?

This is the grand Question, and the Answer to it is, what most nearly concerns Us. What has been said under the former head, is but of little importance, But as it serves to clear up the Difficulty under this.

On the first Point, my Opinion was greatly supported with Testimonies, but on this it must chiefly rely upon the Authority of Reason, upon a fair Deduction from such Principles as are known and certain.

Whoever admits, that the King cannot erect a Court of Equity in England without the Consent of the Legislature, and yet affirms, that the King can erect such a Court within this Colony not without such Consent, shou’d shew that Law which enables him to do this.

For my part, I know of no Law to put the Plantations upon a different Footing from England in this Respect; I conceive nothing less than an Act of Parliament or an Act of Assembly, can alter the Law in this Point. And as I know of no such Act, Therefore I am obliged to be of Opinion, THAT NO COURT OF EQUITY CAN LAWFULLY EXIST WITHIN THIS COLONY, WITHOUT CONSENT OF THE LEGISLATURE.

I conceive that in the Main, we are under the same Constitution with the People of England. That the Prerogatives of the Crown and the Liberties of the People are the same here as there. ’Tis very evident that we have but one King; who bears the same relation to all his Subjects, as their common Head and Father, who deals not with one as a Son, and with another as a Slave, but with all as Children. And as the Bonds of Duty and Alleigance equally oblige them all, so all have an equal Share in His Paternal Care and Protection.

It is but one Oath that the King takes at his Coronation, with respect to the Government of the People of England, and People here. By which Oath, according to the Act of Parliament.(a) He promises and swears, To govern the People of England, and the Dominions thereunto belonging, according to the Statutes in Parliament agreed on, and the Laws and Customs of the same.

Hence the Subjects inhabiting the remotest Dominions, belonging to England, are to be governed by the Edition: current; Page: [763] same Laws, as the People inhabiting within the Realm. And as the People of this Colony, are governed by the same Prince, according to the same Laws, with the People of England, it seems clearly to follow from thence, That the King cannot Erect a Court of Equity within this Colony, without Consent of the Legislature, because by the Laws of England, he cannot erect such Court there, without such Consent.

There is no Doubt but that if the Parliament in England, should give to the King a Power to erect New Courts of Equity in the Plantations, or if the Power to erect a New Court of Equity within this Colony, was by Act of Assembly lodged in the Crown, then the King’s Letters Patent or Commission, pursuant to such Power, would lawfully create such a Court, but this is no Part of the present Question. None ever doubted but that a Court created pursuant to a Power given, by Act of the Legislature, would legally exist; but the Enquiry is, Whether such a Court can lawfully stand, within this Colony, upon any other Foundation, than such an Act?

To affirm this Power in the Crown, without an Act of the Legislature, in my humble Opinion, supposes his Majesty to be vested with an Arbitrary Authority over his American Subjects, with Power to impose New Laws, without their Consent; which would be to alter the Constitution, and deprive us of one of the chief Privileges, which we justly glory in, as the Birth-right of English-men.

Nothing is more certain, than that His most gracious Majesty in His great Goodness to His People here, claims no Power to alter the Laws, or to put His Subjects here under the Government of any other, than the known Laws of England, or of this Country, which they or their Ancestors have chosen. Therefore his Majesty’s 45th Instruction to his late Excellency, Governor Montgomerie, was in these Words,

You shall take care that no Mans Life, Member, Freehold or Goods be taken away or harmed in Our said Province, otherwise than by established or known Laws, not repugnant to, but as much as may be agreeable to the Laws of this Kingdom.

To this purpose also, all the Commissions to the Judges of this Province, which I have seen, are,

To Hear, Try and Determine all Pleas whatsoever, Civil, Criminal and Mixt, according to the Laws, Statutes and Customs of the Kingdom of England, and the Laws and Usages of the Province of New-York, not being Repugnant thereto.

Edition: current; Page: [764]

And as his Majesty does not claim any Right to govern his Subjects here by any Arbitrary Authority, but by known Laws, so the Introduction of an Arbitrary Government in the Plantations, has been very heinously resented by an English Parliament, in the Case of the Earl of Clarendon;(b) the 8th Article of Impeachment against the Earl was, “That he had introduced an Arbitrary Government in his Majesty’s foreign Plantations, and had caused such as complained thereof before his Majesty and Council to be long imprisoned for so doing.

From all which it seems, that the Government in England does, and always has, look’d upon the Plantations as having the same Privileges with the People of England; and that the Prerogatives of the Crown, and the Peoples Liberty, are regulated by and under the Protection of the same Laws here as in England.

Hence it seems undeniably to follow, that We in this Colony, have a Right to Magna Charta, the Effect of which in part is, That no Man shall loose his Life, Liberty or Estate, but by the Judgment of his Peers, and the Law of the Land.

Now “by the Law of the Land,” according to my Lord Coke,(c) “we are to understand the Common Law, Statute Law, or Custom of England,” which are known Laws, and such as have provided a Rule for the Administration of Justice, not dependent on the Discretion of a Chancellor.

If We in this Colony are entitled to the Privileges of English-men, then we also share in all the Benefits contained in the Petition of Right,(d) by which the Liberties contained in the great Charter, and other ancient Statutes, are declared to be the Right of the Subject.

For the like Reason, we in this Colony also share in the Benefit of the Statute,(e) by which it is declared,

That neither his Majesty nor his Privy Council, have, or ought to have any Jurisdiction, Power or Authority by English Bill, Petition, Articles, Libels, or any other Arbitrary way whatsoever, to examine or draw into Question, determine or dispose of the Lands, Tenements, Hereditaments, Goods or Chattles, of any of the Subjects of this Kingdom, but the same Edition: current; Page: [765] ought to be tryed and determined in the Ordinary Courts of Justice, and by the ordinary Course of the Law.

Now it is very evident, as will be observed by and by, That the Rule of an Equity Court is often opposite to the Rule of the common Law, and the Proceedings of such Courts are always different from the ordinary Course of the Law; so that to suppose a Power to erect such Courts in the Crown independent of the Legislature, supposes a Power to deprive the Subject of the Privileges declared in these Statutes, and that without their Consent.

Upon the whole of what has been offered, I conceive, that if the People of this Colony are entitled to the Birth-right of English-men, if the Prerogatives of the Crown, and the Liberties of the Subject, are the same here as in England, as they must be, if we are under the Government of the same Prince and the same Laws; which are the common Rule and Measure of both, then what is not lawful in England, cannot be lawful here, and consequently if no Court of Equity can be erected there, without Consent of the Legislature, so neither can such Court be erected here, without such Consent.

The Sense of the Legislature in this Colony in all past Times, has been agreeable to what I have before advanc’d; for when a Court of Equity was by them thought necessary, they did consent to a Law to erect one, Anno 1683. by which among other Things it is declared,

That there shall be a Court of Chancery within this Province, which said Court shall have Power to hear and determine Matters of Equity, and shall be esteemed and accounted the Supreme Court of this Province. And be it further enacted, That the Governour and Council be the said Court of Chancery, and hold and keep the said Court, and the Governour may depute or nominate in his Stead a Chancellor, and be assisted with such other Persons as shall by him be thought fit and convenient, together with all necessary Clerks, &c.

This is a perpetual Law, and gave the Subject a lawful Court to have Recourse to, for such Relief as the common Law had not provided for him: And as the Assembly of this Colony, gave their Consent to the erecting a Court of Equity, when it was thought necessary; so, it appears that they have very frequently declared, against the erecting such Courts without such Consent. To this Purpose we find in the Journal of this House, on the 10th November 1702, an Entry in these Words, viz.

Edition: current; Page: [766]

Capt. Garton reported from the Committee of Grievances, to whom the Petition of William Hallet, Thomas Hicks &c. and the Petition of Richard Smith was preferred, that they had examined and considered the same, and came to a Resolution which they had directed him to report to the House, and is as followeth, viz.

Resolved, That the setting up a Court of Equity in the Colony without Consent of General-Assembly, is an Innovation without any former President, inconvenient and contrary to the English Law.

Resolved, That the Court of Chancery as lately erected and managed here, was and is unwarrantable, a great Opression to the Subject, of pernicious Example and Consequence, That all Proceedings, Orders and Decrees in the same are and of Right ought to be declared Null and Void; and that a Bill be brought in accordingly to these two Resolutions, to which the House agreed.

I have been informed, that some time before the making these Resolves, my Lord Bellomont, had taken upon him (as far as in him lay) to suspend the Effect of the aforesaid Act of Assembly, whereby a Court of Chancery was erected; and by an Ordinance created a new Court of Chancery, to be holden before himself, without the Council, and that this was the Court of Equity, against which the said Resolves of this House were made, which Court continuing, We also find the following Resolves of this House to have been made in later Times, viz.

Die Sabat.8 8 h. A. M. 11 Sept. 1708.

Resolved, That the erecting a Court of Equity without Consent in General-Assembly, is contrary to Law, without President [sic], and of Dangerous Consequence to the Liberties and Properties of the Subjects.

Die Sabat. 24 November 1711.

Resolved, That the erecting a Court of Equity without Consent of General-Assembly, is contrary to Law, without President [sic], and of dangerous Consequence to the Liberty and Property of the Subject.

Die Sabat. 9 ho. A. M. 25 Nov. 1727.

Resolved, That the erecting or exercising in this Colony, a Court of Equity or Chancery (however it may be termed) without Consent in Edition: current; Page: [767] General-Assembly, is unwarrantable and contrary to the Laws of England, a manifest Oppression, and Grievance to the Subjects, and of pernicious Consequence to their Liberties and Properties.

The Act thus made, and the repeated Resolves of former Assemblies, are an undeniable Testimony, that that Branch of the Legislature has heretofore been of Opinion, That no Court of Equity cou’d legally have any Being or Authority within this Colony, without their Consent.

I might have passed immediately to show, what I conceive to be the Reason of the Law on the two Points mentioned, had not the Doctrine by me advanc’d, lain open to one Objection; which I have heard often mentioned, and which it behoves me to take some Notice of: The Objection is this, viz. That though the King cannot erect a new Court of Equity, without Consent of the Legislature; yet the Court of Equity, in the Supreme Court of this Province, is an old Court, that has it’s Existence and Authority by the common Law, and depends not upon the King’s Power to erect any such Court.

This Objection seems intirely to give up the Power of the Crown, to erect any such Court without Consent of the Legislature, and places its whole Authority upon the Basis of the common Law, independent of any Patent or Commission from the Crown, or Act of Legislation to give it an original Being and Authority; but in considering it, sundry Difficulties that attend the Opinion thereby advanc’d, have occured to me, which I have not been able to get over.

First, I have not been able to imagine how any Court even of common Law, whose Being and Jurisdiction is confin’d to this Colony, can with any Propriety be said to be an old Court: The Colony it self was planted but very lately, and no Court according to the common Law of England, can be supposed to have had any Being here, before the Settlement of the Country by the English, Anno. 1664, which some People still living, well remember.

It has also been exceeding difficult for me to imagine, how even a Court of common Law can have any Being here by the common Law of England, unless it has for its Foundation some general Custom of the Kingdom of England, or particular Custom of England or Act of Parliament. Now the common Law of England in the large Notion of it, consists of general Customs, particular Customs, and Statutes, according to that old Distich,

Edition: current; Page: [768]
  • Jus commune vetus; mores; consulta Senatus:
  • Haec tria jus Statuunt (Terra Britanna) tibi.9

Therefore whatever Court exists here by the common Law, must be by Virtue of a general or particular Custom, or Act of Parliament of England; but that any Court in this Colony can exist by Virtue of any Custom of England, in my humble Opinion, seems in the Nature of Things altogether impossible, if we consider the Nature of the customary Law of England, and how it grew up into a Law, and compare it with the Condition and Circumstances of this Country.

The Author of the Book called Doctor & Student(f) says,

The third Ground of the Law of England, standeth upon divers general Customs of old Time, used through all the Realm; which have been accepted and approved by our Sovereign Lord the King and his Progenitors, and all his Subjects; and because the said Customs be neither against the Law of God, nor the Law of Reason, and have been always taken to be good and necessary for the Common-wealth of all the Realm, therefore they have obtained the strength of the Law; insomuch that he that doth against them, doth against Justice; and these be the Customs that be properly called The Common Law.

The same Author tells,(g)

That the fifth ground of the Laws of England, standeth in divers particular Customs used in divers Counties, Towns and Cities, and Lordships, in this Realm; the which particular Customs, because they be not against the Law of Reason, nor the Law of God, tho’ they be against the general Customs or Maxims of the Law, yet nevertheless they stand in Effect and be taken for Law.

And among the Examples of the several Customs, the same Author says,

By the general and old Custom of the Realm, the eldest son is only Heir to his Ancestor, &c. but by the particular custom of Gavelkend in Kent, all the Brethren shall inherit together; also there is another particular Edition: current; Page: [769] custom called Burgh English, where the younger Son shall inherit before the eldest, and that custom is in Nottingham.

Davis in the Preface to his Irish Reports, gives a very rational Acount of the Manner how these customs grew into a Law(h) says,

The common Law of England is nothing else but the common custom of the Realm, and a custom which hath obtained the Force of a Law is always said to be jus non Scriptum,10 for it cannot be made or created either by Charter or by Parliament, which are Acts reduced to Writing, and are always Matter of Record; but being only Matter of Fact, consisting in Use and Practice, it can be recorded and registred no where but in the Memory of the People.

For a custom taketh Beginning and Groweth to Perfection in this Manner: When a reasonable Act once done, is found to be good and beneficial to the People, and agreeable to their Nature and disposition, then do they use it and practise it again and again, and so by often iteration or multiplication of the Act it becometh a Custom; and being continued without Interruption time out of Mind, it obtaineth the Force of a Law.

From the Account given by these Authors, of the Nature of the customary Law of England, a Court even of common Law, that it may exist by Virtue of those customs, must have these Properties,

1st. Such Court, must have had a Being from beyond the Memory of Man, which according to the legal Date (in the beginning of the Reign of Richard I Anno, 1189) is now 545 Years; for every thing that is pretended to subsist by this customary Law; must not be known to have had its Original within less Time.(i)

2d. Such Court, must have had some general Jurisdiction all over England, if it subsists by a general Custom, or a limited Jurisdiction over some particular Part of England, if it subsists by Virtue of a particular Custom.

Now if we compare any Court in this Colony, even of Common Law, with these Properties, we shall find that they are altogether incompatible with the Being and Existence of any such Court.

Edition: current; Page: [770]

No Court of Common Law in this Colony cou’d have had a Being before the Year 1664. and it is notorious, that all the Courts now in Being, have derived their Original from a much later Date; so that no Jurisdiction in any Court can be pretended to here, by Virtue of immemorial Usage or Custom.

But in the next Place, seeing no Court here can pretend to have any Authority but within this Colony; and seeing this Colony is no Part of the Realm of England, but only a Part of the Dominions thereto belonging, it seems from thence clearly to follow, that tho’ our Courts had subsisted within this Colony from beyond the Memory of Man; yet because they have not nor ever had any Being or Jurisdiction within the Realm of England, they can’t with any Propriety be said to subsist by the Customary Law of that Kingdom.

From these Considerations, it seems, in my humble Opinion, utterly inconsistent with the Nature of the Customary Law of England, and the Circumstances of this Country, that any Court here, can subsist by Virtue of such Custom.

If it be pretended, That the Courts of Law, subsist here by the Statute Law of England, then it will be incumbent on the Affirmant to produce those Statutes. For my part I know of no such Statute; therefore, I conceive, no Court of Law within this Colony, does exist by the Common Law of England, in the large Sense of that Term, and consequently such Courts, must have derived their Original from some other Fountain.

But secondly, As no Court of common Law within this Colony, does exist by the Statute Law of England, nor can exist by Virtue of the Customary Law of England, for the Reasons aforesaid; so it seems to me, That no Court of Equity, properly speaking, can have Consistent with the Nature of the Common Law, any Authority from that Law, even in England it self. When I say, such Court can’t have any Authority from the Common Law, I understand the Common Law as oppos’d to the Statute Law, in which Sense it is often taken; and my Meaning is, that a Court of Equity, properly considered, can’t have any Authority from the ancient Customary Law of England. The Matters about which a Court of Equity are conversant, and the Rule by which it proceeds, seem to be strong Evidences of the Truth of this.

The Matters about which such Courts are conversant, are either Cases for which the Common Law has provided no Remedy, or Cases where its general Rules, by reason of some particular Circumstances, would impose an Hardship upon the Subject, contrary to natural Justice and Equity. Now Edition: current; Page: [771] that the Common Law should give an Authority to determine in Cases not within the Provision of that Law, is, to me, inconceivable; It seems to me, as much a Contradiction as to affirm a Thing to be, and not to be, at the same Time.

Again, in Cases wherein a Court of Equity, undertakes to moderate the Rigor of the Common Law, it must necessarily act in direct Opposition to the common Law. And it seems to me, to be an Absurdity to imagine, that the Common Law should give an Authority to any Court to controul and subvert it self.

It seems further evident, That a Court of Equity can’t have any Authority from the Common Law, if we consider the different Rules by which the Courts of common Law and Courts of Equity proceed. Thus, in every Case that can be subjected to decision in any Court, there can possibly arise but two sort of Questions, viz. Questions about the Fact, and Questions about the Law arising on the Fact; now as to the Tryal of both these, the Rule is different.

First, As to the Tryal of Matters of Fact; the ordinary Course of the Common Law is by the Verdict of Twelve Men; there are indeed some extraordinary Cases wherein the common Law has prescribed another Method of Tryal; as Infancy, in some Cases, is tryed by Inspection, &c. but these do not subvert the general Rule, which is Ad quaestionem facti respondent Juratores.11 But in Courts of Equity, the Chancellor Judges of the Facts by the Testimony of Witnesses, without a Jury. Now this Method of Tryal is no ways conformable to the Course of the common Law, and therefore Courts of Equity can have no Authority from thence to try Facts in that Way.

Secondly, The Rule by which the Question of Law arising upon the Fact, is decided, is different: For Example, the Courts of common Law, judge according to the Statutes and Customs of England, which are known and certain: But Courts of Equity judge according to their Discretion, without being tied down to any known and certain Rule, and often times decree directly contrary to the Judgments of the Courts of common Law. In such Case, I conceive, the Court of Equity can have no Authority from the common Law, for the Reasons aforesaid.

From that Opposition, that Courts of Equity stand in, to the Courts of common Law, I suppose it is, that Mr. Selden in his afore-mentioned Edition: current; Page: [772] Discourses,(a) speaking of the Court of Chancery, says, “It becomes a kind of peculiar exempting it self from the ordinary Course, in Manner of Tryal, and from the ordinary Rules of Law, in giving of Sentence,” My Lord Hobart(b) speaking of Equity, says, it is “opposite to regular Law, and in a Manner an Arbitrary Disposition; ’tis true,” says he, “the one is bound by Rules, the other absolute and unlimited.” The Statute 15 Henry 6(c) mentions the Proceedings of the Court of Chancery to be in SUBVERSION of the common Law, and such it must needs be, in all Cases wherein it decides against the Sentence of the common Law.

From these Considerations, it has seem’d to me, as easy to admit a plain Contradiction or Absurdity, as that any Court of Equity, even in England, properly speaking, can have any Being or Authority by the common Law, or that any Court can be said to be a Court by the common Law, which proceeds by other Rules than that Law prescribes; wherefore all Courts of Equity in England, that have had an allowed Jurisdiction, seem to me, to have derived their Original from some other Fountain than by common Law, in the Sense in which I conceive the Term.

Thus I have finished what I intended, in answer to the two Questions arising on the Petitions. I shall proceed therefore in the last Place, according to the Method proposed, to offer what I conceive to be the Reason, Why the King cannot erect a Court of Equity, either in England or here, without Consent of the Legislature.

The Reason of the Law is said to be the life of the Law, and Littleton concludes his excellent Book of Tenures, by telling us, That Lex plus laudatur quando ratione probatur.12 ’Tis not always easy to assign the true Reason of the Law, but I conceive, a small Knowledge of the English Constitution, and the Nature of Equity Courts, will enable any Person to guess at what may probably be the Reason of the Law in this Case, and I take it to be this, viz. That a Power to erect Equity Courts, without the Check of the Legislature, would tend to subvert the common Law, and to erect an arbitrary Authority instead of it. ’Tis certain that the King can grant to hold Pleas according to the Course of common Law; but this can no way endanger the Liberties Edition: current; Page: [773] and Properties of the subject, because all must proceed according to one common Rule, the known Laws of the Land. But if at any Time hereafter, it should happen, that any Prince should aim at an arbitrary Power, over the Liberties and Properties of the People, it is easy to discern that the fittest Engine, to serve such a Purpose, would be an unlimited Power to erect Arbitrary Courts, for such all Courts of Equity, in some sort, are as my Lord Hobart says,(d) “Equity being opposite to regular Law is in a Manner an arbitrary Disposition.” ’Tis certain that in every Constitution, there ought to be some Power to administer Justice in Cases not provided for by the common Laws of the Land. Agreeable hereto the same Author says, “All Kingdoms in their Constitution are, with Power of Justice, according to Law and Equity.” The Necessity of such a Power appears, in that no Body of Laws can be supposed to be so perfect, as to give a certain and determinate Rule for the Decision of every Case, that can possibly arise. And among those Cases that are provided for, the Rule of Law, under possible Circumstances, will sometimes, prove too severe. But notwithstanding the Necessity of this Power of Justice according to Equity, yet I believe it will be readily granted, that it can be no where so properly lodged as in the Legislature, or in some Court immediately dependent upon it, because every Case not provided for, by the common and known Laws, requires, as it were a new Law for that particular Case; and what Power can be so proper to provide such a Remedy, as that which is able to make a Law?

Nothing seems to be more opposite to the Nature and Design of the English Constitution, than a Power in any Person to act Arbitrarily. The strong Checks that are put upon every Branch of Power in our excellent Constitution, is a convincing Demonstration of it. This is discernable in both the Legislative and Executive Power of the Law.

First, As to the legislative Power: no Law can be made without the Consent of the three Estates in Parliament, and in this respect each is a Check upon the other two. The Power of the King is check’d by the Lords and the Commons; and the Lords are check’d by the King and the Commons; and the Commons are check’d by the King and the Lords; so that in making Laws none can act without the other. Hence it follows, that none have a Power to do Ill, without the Consent of the other Branches of the Legislature; and this is the less to be fear’d, because Mankind are naturally true Edition: current; Page: [774] to what they find to be their Interest, and the Majority will ever find their Interest in the Welfare of the whole, and it is but a small part of the whole, that can at any Time have any Interest in a Law that is opposite to the publick Good; so that a better Constitution in this respect I think cannot be devised or imagined.

Again secondly, If we consider the Executive Power of the Law, we shall observe it in every respect to be under a strong Check. The Constitution has lodg’d this Power wholly in the King, and it is esteemed one of the brightest Jewels in the Crown. To this End he has Power to grant to hold Courts, so that they be Courts of common Law; and to appoint Judges and Officers of these Courts. But nothing can more effectually display the Excellency and Safety of the English Constitution, than the Consideration of the Checks that have by Law been put upon this Power, in all its Branches. To evidence this we may observe,

First, There is the fullest Assurance given by the Prince, that this Power shall not be exercised, but according to Law; this is by the Oath taken by all our Kings at their Coronation, wherein the Original compact between the King and People seems to pass under a new and solemn Ratification. What stronger Obligation can be devised, to restrain the Sovereign from affecting a Dominion over the Laws than this?

But for the King to govern his People according to Law, he must appoint Judges. Now great Care has been taken by the Constitution, that the regal Power should be regulated in this respect. To this End the Judges of the Kings-Bench and Common-Pleas must be made out of those Men, whose Learning, Age and Experience has dignified their Heads with a Coif, and none can lawfully be called to the Bench, whose Proficiency at the Bar, has not first raised him to the Degree of a Serjeant at Law,(e) Fortescue de Laud. Leg. Ang.13 Cap. 50. 51.

Bracton, a learned Judge in Henry the Third’s Time, in his Book of the Laws and Customs of England,(f) very elegantly describes the Qualifications and Duty of our Judges, which translated from the Original Latin, is to this Effect.

Edition: current; Page: [775]

If the King cannot determine every Cause, (says he) that he may have the less Trouble; he ought to choose out of his Kingdom wise Men, who fear God and hate Coveteousness, and out of them to constitute Judges, Sheriffs and other Bailiffs and Officers, to whom may be referred all Controversies and Complaints, and who must not turn aside from the Path of Justice, either to the right Hand or the left, for Earthly Prosperity or Fear of Adversity; that it may be said of them as is spoken by the Psalmist, That a Righteous Judgment hath proceeded from their Mouth. In every Case that comes before them, they ought well to consider, how far and in what Manner, Necessity, Conveniency and Decency oblige them to act, and in every respect to do their Duty. Such a Conduct becomes the Honour of a King, whose Person they represent in giving Judgment. Let them (says he) deny no Man the Benefit of the Law, of no Man let them ask or receive a Reward, that every Man may have free Liberty to sue for his Right, that the Cause of the Widow may have an easy Access before them, and that they may be the Helpers of the Fatherless, and that they may allow no Exception against any Mans receiving such Relief as the Law affords, That their Judgment’s and Sentences may be agreeable to the Law and approved Customs, and the publick Good; before them let not the Power of one Party bear down another, but let every one do what is most for the Benefit of his Cause, and let the mighty be prevented from doing wrong; nor let Hatred, Favour or Good-will prevent their judging justly; that it may be said of them Justus es Domine & rectum Judicium tuum,14 Also, they ought to be wise Men who judge, that they may not beg or borrow of others the Honour of executing that Office. And if any not Wise and Learned presume to ascend the Seat of Judgment, and to take to him the Honour of a Judge, he falls Head-long from his Dignity, because he attempted to fly before he had Wings; and he that gives such an one Power to judge, does like him who puts a Sword into the Hands of a Madman. Also, a Judge ought not only to be a wise Man, but a Man of Courage, according to that of Solomon, do not seek to be made a Judge, unless you have Strength to break asunder the Bonds of Iniquity, least you should be afraid of the Face of the mighty, and your Cowardice lay a Stumbling-block in your Way.

Thus wrote this excellent Judge about 500 Years ago; which shews, what sort of Men it was then understood that the King was obliged to choose for Judges; and happy must the People be whose Laws are declared by such Judges as answer the Character there given.

Edition: current; Page: [776]

From the legal Qualifications of the Judges ’tis evident, that there is a Check upon the Power of the King; who though he has a Liberty to appoint to that Office whom he pleases, yet his Choice must be made out of those that are legally qualified for that Office; and the Tenour of his Oath, whereby he obliges himself to govern his People according to Law, obliges him to choose those Men to declare the Law, which are most likely to answer that End.

But, Secondly, the Check that is upon the Regal Power in the Execution of the Law, is further evident in that the Judges, tho’ they take their Office from the King, yet their whole Authority is from the Law.[1] That Law which is not made by the King only, but established by immemorial Custom or common Consent in Parliament. And hence also it is that the King cannot alter the usual Forms of the Commissions of the Judges, without an act of Parliament.[2] And as the Judges have their Authority only from the Law, and the very Form of their Commissions are directed by it, so they are all sworn to observe and give Sentence according to it, in all their Judgments. And in the Execution of their Offices, they are in so absolute a Manner subject to the Direction of the Law, and independant of the King, who appointed them; that they cannot obey any Mandate if it be against the Law, though under the great Seal, &c. from the King himself.[3] And if in the faithful Execution of their Offices, they are so unhappy as to disoblige their Prince, yet it is not now in the Power of the King to displace them[4] which great Privilege is one of the blessed Fruits of the late glorious Revolution!

This Check in the Execution of Justice, is further continued, in that the Judges, if they exceed their Authority, and assume a Power that does not belong to them, are liable to be excepted to.[5] Hence have proceeded the various Kinds of Exceptions and Pleas to the Jurisdiction, of which we find so many Examples in our Books.

And if the Judge, before whom the Exception is taken, or Plea pleaded, will not desist, but proceed to take Cognizance of that for which he has no Warrant, the Check is still continued, in that such Judge cannot act Edition: current; Page: [777] Arbitrarily, but is liable to the Prohibition of a Superiour Court, which if he still refuses to obey, but proceeds without Authority, he is liable to be attach’d and punish’d for his Contempt.(a)

Again, admitting that the Judges have Jurisdiction in the Case that is brought before them, the Check upon their Power still continues, in that they have no right to determine matters of Fact, (Except in some extraordinary Cases, as has been mentioned) But this Power wholly belongs to a Jury; which is a great Check to the Arbitrary Decisions of a Court.

And then, seeing Matters of Law are only the Province of the Judges, the check still Continues, in that, if they Err in an Interlocutory Opinion which affects the Merits of the Cause depending before them, the party Injured may have a Bill of Exception to such mistaken Opinion,(b) and by writ of Error, returnable in a Superiour Court be relieved as well against such Opinion, as against any Error Apparent on the Record of the Judgment given in the said Cause.

And if the Judges wickedly betray the great Trust reposed in them, as some have done; they are not only lyable to be turned out of their Offices with Disgrace, but to be capitally punished for their misdeeds. Our English History abounds with Examples of the punishment of corrupt and wicked Judges: King Alfred hang’d 44 of them in one Year, whose Names and Crimes are all recorded in the mirror of Justices.(c) Thorpe a Judge of the Kings Bench in Edward 3d Time, met with a lighter punishment; he was only at the Will of the King for his Body, Lands and Goods, because he had done a Thing contrary to his Oath.(d) We find an Example of severer Justice in the Reign of Richard the Second who aiming at Arbitrary Power, procured the Judges of the King’s-Bench and Common-Pleas to give it under their Hands, That the King was above the Laws. Whereupon Belknap, Chief Justice of the Common-Pleas, after signing, cryed out with Remorse, and said, there was nothing wanting but a Horse, a Sledge and a Halter to carry him to the Death he deserved. And tho’ these Judges were compelled to do this by the menaces of the King’s Favorites, yet that did not excuse them; for some time after they were arrested as they sate in Judgment, and most of them sent to the Edition: current; Page: [778] Tower, and all were condemned as Traytors. Tresilian, Chief Justice of the King’s-Bench who had fled, being apprehended and brought to the Parliament in the Forenoon, had Sentence to be drawn on a Hurdle to Tiburn in the Afternoon and there to have his Throat Cut, which was executed accordingly. Others say, that he was first hanged, and that the Executioner to make sure work of it, cut his Throat, and let him hang till the next Morning.(e) The rest of his Brethren, together with Belknap, and the Judges of the Common-Pleas, thro’ great Intercession, escaped with Banishment.

Another Example of the Capital Punishment of wicked Judges, was in the Case of Empson and Dudley; who notwithstanding what they did, was by colour of Acts of Parliaments,(f) yet that would not protect them from the Gallows, but they fell a Sacrifice to that Resentment, which their Oppression, Injustice and Cruelty had provoked; of whom my Lord Coke says(g) Qui corum vestigiis insistunt corum exitus perhorrescant. Let them that tread their Steps, dread their End.

Thirdly, As the Judges of Law are under a powerful Check, so are Juries, who are Judges of Fact. This is evident, if we consider their necessary Qualifications; they must be probos et Legales Homines,15 Men of Honour, Honesty and Estate, without Interest in the Cause, or Relation to either of the Parties; who by living in the Neighbourhood of the Place where the Fact, which is to be tryed, is said to be done, may justly be supposed to be the best able to understand the Evidence that is given concerning it, as well as to judge of the Credibility of the Witnesses, and the Character of the Persons concerned in the Dispute; such Persons can’t so easily err, as those who are meer Strangers to the Fact, Witnesses, and Parties; and a Regard to Justice and their own Honour will oblige them to take the utmost Care that they may not err.(h)

But besides this, they are not trusted to give their Verdict only upon Honour, but upon Oath,(i) whereby they are sworn, Well and Truly to try the Matter in Question, and to give a true Verdict according to Evidence. Which is an Obligation of the most solemn Nature, that has ever been devised among Mankind. And in Order to help their Understandings, and engage their Wills Edition: current; Page: [779] to the faithful Performance of their Oath and Duty, they have the Bench of grave and learned Judges to preside over and assist them; whose Direction, tho’ they must not follow, against the Dictates of their own Consciences, yet the Authority of the Judges, when rightly used, will infallibly awe a Jury into the most solemn Attention to what they are about.

But the Check upon a Jury does not consist of these Particulars only; but further, if after all the Care that has been taken to inform them, they should, thro’ Weakness of Understanding and Judgment, err in their Verdict, the Judges have for some Time past used a discretionary Power in those Cases, to grant a new Trial.(k) But if, thro’ wilful Wickedness, they perjure themselves, and give a false Verdict, they are liable to an Attaint, on which the Judgment is, That they be committed to Prison, their Goods confiscated, and all their Possessions seized into the Kings Hands, that their Houses and Buildings be razed and thrown down, their Woods felled, and their Meadow Grounds plowed up; That they for ever after be taken for infamous Persons, and that in no Place they be received to testify the Truth,(l) This is the Sentence of the common Law upon every guilty perjur’d Jury; than which nothing but Death can be more terrible.

From all which, it appears, that a Jury are under a most strong and powerful Check, and cannot act arbitrarily without violating the most sacred Engagements, and exposing themselves to a very fearful Punishment.

We shall further see in the fourth Place, the Guard that has been set against arbitrary Power, in the Execution of the Laws, by the Subordination of Jurisdiction, and the Check which by one Court is put upon another. Thus the Court of Kings Bench, called the Fountain of Justice (where the King is supposed to sit in Person) has a supreme Jurisdiction all over England, and checks every inferiour Court, having full Power to rectify their Mistakes and correct their Errors, and to punish Magistrates and Officers when they deserve it. Even the Court of Chancery, in it’s Proceedings according to the common Law, and the Court of Common-Pleas at Westminster, are not exempted from the supreme Cognizance of this great Court, but it has Power to examine into their Errors, and reverse their Judgments.(m)

Edition: current; Page: [780]

And this Court as it is a Check to others, so also it is not without a Check; for when it’s Proceedings commence by Process out of the same Court, then the Subject has a double Remedy against it’s Errors and Mistakes, and the Court a double Check. First, by Writ returnable before the Justices of the Common-Pleas, and the Barons of the Exchequer in the Exchequer Chamber, and from thence by Writ of Error before the Upper-house of Parliament. But if the Proceedings commence by Original out of the Chancery, then the Court is only check’d by the Parliament, who upon a Writ of Error return’d there, have Power to reverse its Judgment.(n)

Thus we find the Check that is put upon every Branch of Subordinate Power is such, that it is not easy to conceive, how the Evils that Communities are Subject to, can be more Effectually prevented, or certainly remedied, than in the way that the Constitution has provided. The whole Polity of our Laws appears, to be a Contrivance of great Wisdom and Justice whereby the true ends for which Societies were first form’d, and Government instituted, seems to be in the best Manner consulted and secured—And I much Question whether there is any Constitution upon the face of the whole Earth, which more truly supposes Man to be what he is, and that is better calculated than this, in every respect, to render the Prince Great and Glorious, and the People Free and Happy! ’Tis certain, that nothing can be more opposite to the Disposition and Nature of our Laws, than an Arbitrary and despotick Power of any kind; and therefore it has fenc’d against it on every Side.

But the Checks that are visible in the Frame and Constitution of the Common-Law, are in a great Measure wanting in the Supream Courts, of Equity in England. This is evident if we consider.

That this great Officer, the Lord Chancellor is in these Days entirely at the Kings Disposal, his Authority is only during Pleasure, whereas the Judges of the Common-Law hold their Offices during good Behaviour(o) by which they have an Estate of Life, in their respective Offices(p) and cannot be removed but upon Conviction of Misbehaviour in a due Course of Law, or upon the Address of both Houses of Parliament. But the King can displace the Lord Chancellour when ever he thinks fit, He is made by the delivery of the great Seal, and by taking his Oath; and may be unmade by taking back the great Edition: current; Page: [781] Seal, whenever His Majesty pleases to demand it.(q) Formerly this great Officer had his Authority from the Parliament. Hence Mr. Selden(r) speaking of the Chancellor, says,

At first he was no better than a Register, or the Kings Remembrancer or Secretary, having also the Honour to advise the King in such Matters as came within the Circuit of the Writings in his Custody; and questionless eousque16 it is suitable to all the Reason in the World, that he should be of the Kings sole Nomination, and Election. But when it befalls that instead of advising the King, his word is to be taken for the Rule and a Judicatory Power put upon that; and unto this is super-added this Honourable Trust of keeping and governing the great Seal of the Kingdom, with the continual growing Power, occasionally conferred upon him by the Parliament, He is now become no more the King’s Remembrancer, but the Lord Chancellor of England, and Supream Officer of State; and it seems but reasonable that he should hold his Place by publick Election, as well as the Grand Justiciar (whose Plumes he borrowed) and other Grand Officers of State did before him. For he that will have his Servant work for another, must give the other the Honour of Electing him thereto; nor was this laid aside, nor forgotten by these Times, but a Claim was put in for the Election or Allowance of this principal Officer among others: The Parliament obtaining a Judgment in the Case by the Kings Confession.(a)

Thus the same Author speaking of the Government of England under the Reigns of Hen. 4. Hen. 5. Hen. 6.(b) says,

Thus as the Work and Power of the Chancery grew, so did the Place and Person of the Chancellour grow more considerable; raised now from being the Kings Secretary (for no better was he in former Times) to be the Kingdoms Judge; and of such Trust, that although the King might make Election of his own Secretary, yet the Parliament would first know and allow him, that must be trusted with the Power over the Estates of so many of the People, and therefore did in these Times both place and displace him as they saw Expedient.

Edition: current; Page: [782]

We have a remarkable Example of this Power of the Parliament in earlier Times, than these mention’d by Mr. Selden. It is in the Reign of Henry the third, Rapin(c) says,

That the King having a Mind to remove the Bishop of Chichester from the Chancellorship, in which Office he had behaved unblameably, he had the Mortification to find, that he refused to resign it. To justify his Refusal, he affirmed, that he had been entrusted with that Office by the Parliament, and therefore cou’d not quit it, but by the same Authority.

Secondly, When this great Officer is created, he is vested with an exceeding great Power over the Liberties and Properties of the People, not being confined to judge by any setled and established Laws, but has Liberty to act according to his own Discretion. Sir Henry Spelman, speaking of the Courts of Equity before him(d) says,

That it has Power over Courts of Record themselves, and from uncertain Beginnings, hath by little and little enlarged it self to a wonderful Size.

—He afterwards says,

What is most offensive to the Professors of the Common-Law, is, that the sacred Judgments of it’s Tribunal, have not escaped this Power. Not that it can offer any Violence to them, or on any Occasion, decree them to be void (for this the ancient positive Law forbids; the Statutes of the Kingdom forbid) but when its Judgments are deemed Rigorous, and contrary to Equity, it restrains the Party from obtaining an Execution; and so the Judgment continues unalter’d, but intirely unprofitable, and as it were without Force.

A certain Chancellor in former Times, warily (says he) used this extraordinary Authority, yea, he refused it, as that which threatned to cut the Throat of the Common Law, but his Successors have more greedily catched at, and held this Power, and from thence has sprung the Complaints of former and the Contentions of latter Times.—So that among us the Authority of the Judges is subjected to the Chancellor, just as it was among the French, upon their Return from the Spanish Captivity under Edition: current; Page: [783] Francis the first; therefore what many Judges have adjudged according to the Rule of Law, in the supreme Tribunals, the Chancellor alone (if the Matter require it) may render ineffectual, by his meer Will; neither is he so bound by the Decrees of his Court, or himself, but that upon Discovery of new Light, he may resume the Consideration of what he has decreed, and either alter and make it void, as he in his Discretion thinks fit.

He afterwards adds, that it seems a grievous thing, ut in aula vnius pectoris omnes omnium fortunae, vario agitentur discrimine, fatum subeant et succumbant “That all the Fortunes of all Men should be exposed to a doubtful incertainty in the Court of one Mans breast, and he compelled to yield to its decisive Sentence.”

’Tis difficult to express the Force of Sir Henry Spelman’s Sentiments, as they are conceived in the Original Latin. But from him we may learn what was the Authority of this Court, in the Days of King James the first (about which Time this Author wrote, and what was the Opinon of this learned Man, and probably of many others concerning it.

We have already shewn in our Answer to the Second Question, that this Court is not confined to the Rules of the Common Law, either in giving Sentence or in trying Facts. Mr. Selden(e) says, that it is as a BACK DOOR for the Kings Arbitry in case of Judicature, in matters of Common-Pleas; as the Council-Table (Star Chamber) was in Crown Pleas; says he, They both are look’d upon with a very pleasing Eye of Majesty, which loves not to be strait-laced; yet all is embattled under the Colour of EQUITY, HONOUR, CONVENIENCY and CONSCIENCE like a Monopoly that is bred under the Wings of the Publick, but feeds itself upon it.

My Lord Coke, who was Contemporary with the two last mentioned Writers, speaking of Courts, which proceed by no certain and known Rule, says, Misera servitus est ubi jus est vagum aut incognitum i.e.(f) Miserable is the Slavery of that Place where the Law is uncertain or unknown: And when he compares the Certainty of the Rules of the Common-Law with the Incertainty of a discretionary Decision, he represents the one by the right Line(g) and Golden and streight Metwand of the Law, whereby all Mens Edition: current; Page: [784] Causes are justly and evenly measured;(h) the other by the Incertain crooked Cord of Discretion,(i) which shews, that that great Man, had no great Opinion of Courts to determine Causes in a Course of Equity.

Tho’ it is very certain, that for a long Time such Courts have been suffered, yet it has been with frequent Murmurs and Complaints from the People, and those great Men of the English Nation, who have best understood the Constitution, and the Nature and Perfection of our Laws, have ever look’d with a jealous Eye upon the Power of the Chancellour, and have in their Writings given repeated Warnings of the Danger of it; and nothing can be more obvious, than that an Unlimited and Arbitrary Power over the Liberties and Properties of the People, when in the Hands of weak or wicked Men, under the Influence of an Ambitious and Arbitrary Prince, must be introductive of wofull Consequences.

Under the Reigns of our best Kings, the Dangers of this Court have been much out of Sight; wise and good Men have been Chosen to this great Office, and the Designs of their Royal Masters have had no bad Influence on their Virtues. This has been the Felicity of our Age, under a Race of Excellent Princes, whose Thrones have been established on the Basis of the Revolution.

What Uneasiness this Power has Occasion’d in former Days, the Records of Time make manifest; what Effect it may have upon Posterity the Event will declare. Nothing is to be feared from the House of Hanover. The Pillars that Support the Throne, in its present happy Settlement, stand upon the same Foundation as the Peoples Liberty. His Majesty holds his Crown by the same Title by which his Subjects enjoy their Freedom: But if in distant Ages, a King should arise of Ambitious and Arbitrary Views, who shall choose a Man of great Parts and little Honesty, for his Chancellor, who shall tell his Royal Master, that he is as Clay in his Hands,(k) and that his Majesty may stamp upon him what Impression he pleases; the Discontents of former Ages may be revived, and the Calamities fear’d from the Power of a Chancellour, may be felt with a Vengeance.

But perhaps some may say, If the Power of Equity Courts have been thought Dangerous, why have they been suffered? Why are they not totally abolished?

Edition: current; Page: [785]

I Answer; Necessity gave them Being, Necessity continues them in Being. Et necessitas quod Cogit defendit.17 If we consider the Nature of all settled and established Laws, and the infinite Variety of humane Affairs, Cases unprovided for, will frequently arise; and the general and positive Institution in all its possible Applications, will sometimes prove too severe, and deviate from the Rules of Natural Justice. From hence has sprung the Necessity of some Courts, to relieve in such Cases.

A very probable Account of the Occasion and Rise of the Power of the Chancellor, is given by sundry Writers. Sir Henry Spelman has offered his Conjectures on this Head (Glos sub verbo Cancellarius) the Author of the Legal Jurisdiction of the Chancery stated(l) Accounts for it, in this Manner, says he.

The Administration of Justice in this Realm, was the Prerogative of the King, who was Sworn at his Coronation, to deliver to his Subjects aequam et rectam Justitiam;18 this was impossible for him to do in Person, therefore of Necessity he delegated it by several Portions to Ministers and Officers, deputed under him, whom he circumscribed within the Limits of positive Laws; whence by Degrees, standing Courts of Justice were formed, who in the Kings Name, and by his Authority, dispens’d Justice to the People, according to established Law and Order; but in as much as positive Laws must in their Nature consist of general Institutions, there were of Necessity, Variety of particular Cases, still happening, wherein no proper or adequate Remedy could be given by the Ordinary Courts of Justice, proceeding according to positive Law, and many times the Rigour of the Law, might in particular Cases, be Oppression and Injustice: Therefore to supply the want, and Correct the Rigor of the positive and established Law, recourse was had to the King, the Fountain of Justice, to obtain Relief in such Cases, and in such Manner as should appear to him to be just.

The Necessity of Relief in those Cases being evident, accordingly the same Author tells us,

That the Method of Application for it, was by Bills or Petitions to the King, sometimes in Parliament, sometimes out of Parliament, commonly Edition: current; Page: [786] directed to him and his Council, and the granting them was not esteemed Matter of Right, but of Grace and Favour.

When a Parliament met, there were usually Petitions of all Sorts and Kinds preferr’d to the King, and the distinguishing these Petitions, and giving proper Answers to them, occasioned a Weight and Load of Business, especially when Parliaments sat but a few Days; and therefore to remedy it, an Ordinance was made, Anno. 8. E. 1. which is in Ryleys placita Parliamentaria,19 (m) wherein it is recited, that the People who came to Parliament were often delayed and disturbed, to the great Grievance of them, and the Court, by the Multitude of Petitions laid before the King, the greatest Part whereof might be dispatch’d by the Chancellor and by the Justices; therefore it is provided, that all the Petitions which concern the Seal, shall come first to the Chancellor, and those that touch the Exchequer, to the Exchequer, and those which concern the Justices and the Law of the Land, to the Justices; and those which concern the Jews, to the Justices of the Jews; and if the Affairs are so great, or if they are of Grace, that the Chancellor, and others, cannot do it without the King, then they shall bring them with their own Hands, before the King, to know his Pleasure; so that no Petitions shall come before the King and his Council, but by the Hands of the said Chancellor, and other chief Ministers; so that the King and his Council may, without the Load of other Business, attend the great Business of his Realm, and of other foreign Countries.

This Author observes from hence, that Matters of Grace in the Time of Edward the First, were only determinable by the King, or by such as he appointed, and not in any formed or established Court of Equity, and afterwards he gives us his Opinion, how and at what Time this Power fell into the Hands of the Chancellor, which is in part before recited in our Answer to the first Question.

We may also observe, from what has been said, that the Extraordinary Relief which in those Cases was required, was often sought for by Petition to the King in Parliament, which Practice, I have heard is imitated by some of our Neighbouring Colonies, who in Cases unprovided for by their municipal Laws, on Petition of the Subject, gave an equitable Remedy by Act of their whole Legislature. If this do not, (as it did in England) Edition: current; Page: [787] prove burthensome to their General Assemblies, it seems to be an excellent Constitution.

But notwithstanding what has been said concerning the Necessity of some Court of Equity to relieve in these extraordinary Cases, yet we find that no more of these Courts have been allowed than have been found to be necessary. Hence says my Lord Hobart, this Power of doing Justice, according to Equity, as it is opposite to regular Law, has by the Constitution, been committed to the King and his Chancellor, ab initio, as a special Trust not to be commited to any other; and whenever a Necessity has been pretended, within Time of Memory, for a new Court of Equity, the whole Legislature have taken upon them to judge of the Necessity of it, before such Court has been allowed, which Consent of the Legislature I conceive, has been insisted on as necessary, because an unlimited Power in the King to erect such Courts, might in Consequence of it, let in an arbitrary Power over the Liberties and Properties of the People, to the utter Subversion of the common Law, and the legal Security that is enjoyed thereby.

Thus I have shewn what I conceive to be the Reason why the King cannot erect a Court of Equity in England, without the Consent of the Legislature there. Which Reason, I think, is of equal Weight in this Colony; and there are some additional Reasons with respect to the Equity Court of Exchequer lately erected in the Supream Court (mention’d in the Petitions) which render such a Power more dangerous here than in England. I will beg leave to take Notice of some of them.

First, Because the Judges here are more dependent on the Power that created them, than the Barons are in England. This is evident, if we consider, that the Judges of the Supream Court claim no Equity Jurisdiction, but in the Quality of Barons of the Exchequer. Now in England the Barons are appointed by the King; Here the Judges are appointed by the Governor; but then indeed it ought to be by the Advice and Consent of the Council:(m) In England, the Commissions of the Barons now are and always have been DURING GOOD BEHAVIOUR.(n) But here the Judges hold their Commissions only DURING PLEASURE; which Pleasure, tho’ it be the King’s, yet if a Governor should think that he has the Disposal of it, it may so happen, that ’tho the Judges, Act never so unblameably, yet if they should chance to Edition: current; Page: [788] displease the Governor, they may be deprived of their Honours & Offices. And if the Governor, in such case, has an absolute Power to determine the King’s Pleasure, without an Appeal to the King himself, such Judge notwithstanding his Integrity, may continue under that Deprivation without any Remedy. Such a State of Things as this, plainly puts our Judges under greater Dependance upon a Governor than the Barons are, or ever have been, upon the King. The Barons know that if they do their Duty, they will find their Safety in it; but our Judges know, that if they will enjoy their Offices, they must please the Governor. While the Judges Duty and the Governour’s Pleasure coincide, all is safe; but when the Judges Duty and Conscience dictates one Thing, and the Governor’s Pleasure demands the contrary, then is the critical Moment, in which the Judge or the honest Man must quit the Bench. And how safe the Lives, Liberties and Estates of the People will be, in the Hands of the Judge, when the honest Man is gone, I need not tell. And how difficult must the Case of every upright Judge be, who under such Circumstances, will be reduced to an unavoidable Necessity to part with his Integrity or his Office? Such Judge cannot be safe, but upon a Supposal, that the Governour’s Pleasure will never cross the Judges Duty, or that the Governor will not please himself by exchanging the Judge, when it is in his Power so to do. How reasonable such a Supposal as this is, I leave to others to determine.

The great Power in former Times, allowed to our Kings, with respect to all the Judges but the Barons of the Exchequer, made King James the first often say, Give me the Appointment of the Judges, and the Bishop’s, and I will have what Law and what Gospel I please. But our Histories abound with Instances, which shew, that this Power has often proved a Snare to our Princes, to our Judges, and to the People. The Reigns of Richard 2d, Charles 1st, and James 2d, afford flagrant Instances of the Truth of this; which at length gave Occasion for that Restraint which was put upon it, in the Reign of our GREAT DELIVERER King WILLIAM.

How Dangerous to the People of this Colony such a Power over the Judges, may hereafter prove to be, will further appear, if we consider in the second Place, That the Governours for the Time being, may often have an Interest in the Matters depending before them. As Barons of the Exchequer, the Judge cannot take Cognizance of any Cause, but what the King is either mediately or Immediately concern’d in. If they extend their Jurisdiction to other Causes, they are liable to be prohibited;(o) and in all Crown Cases ’tis obvious, that Edition: current; Page: [789] the Governour as the Kings Representatives must have an immediate Interest under him, because no Recovery can be in Favour of the King, but the Governor will have the whole or the principal Power in the disposal of it.

’Tis true, indeed, that the King has the same Interest in the Judgements of the Barons, but then he has no Power to displace them, if they give Judgment against him, nor do we find, that the King ever had such Power; and the most probable Reason of this is, that the Barons might be perfectly Free to do Justice between the King and his People, without any fear of being displaced for doing their Duty.

But if we suppose that the Governor here has a Power to Place and Displace Judges at his Pleasure, and that he has the same regard to His Interest, and the same partiality in Favour of it, which is common to other Men, what must the Condition of the Judge and the Subject be, in Cases where the King is a Party? The Subject has no Safety, but in the Honesty of the Judge; and the Judge has no Safety but in pleasing the Governor. If the Judge decree for the Subject, then probably the Governor will be displeased and tempted to believe, the Judge is unfit for his Office, and that to put another in his Place will be to do his Majesty good Service. I can easily suppose such an Opinion to be sometimes very sincere, because I conceive Governors to be like other Men, and to have the same Prejudices and Partialities as other Men have; and in the Course of my Practice, I have observed, the Parties against whom Judgements have been given, have seldom approved of those Judgments, or conceived that they have been well dealt by, but have generally laid the Miscarriage of their Causes, not to the Injustice of them, but to the Fault of the Court, of the Jury, or of the Lawyer.

All this is upon a supposal that the Governor may be very Honest; and I would always suppose the Kings Representative to be so. But if in after times, a Governor should prove to be otherwise, how deplorable must the Case of the Judges and the People be? The Integrity of the Judge may be imputed to him as a Crime, and the Security which the Subject hath in his Honesty, be the very Cause of his Removal from his Office. What severe Tryals have the Virtue of some of our good Judges been put to, in former Times upon this Account? Sir George Croke may serve for one Example of this; Whitlock tells us (as of his own Knowledge)(p)

that Judge Croke was resolved to Deliver his Opinion for the King in the famous Case of Ship-Money against Mr. Hampden, and to that End had Edition: current; Page: [790] prepared his Argument: But a few Days before the time of delivering it, upon Discourse with some of his Relations, and most serious Thoughts of the Business, and being heartned by his Lady who told her Husband upon this Occasion, that she hoped he would do nothing against his Conscience, for fear of any Danger, or Prejudice to him or his Family; and that she would be contented to suffer Want, or any Misery with him rather than be an Occasion for him to do or say any thing against his Judgement, upon these (says he) and the like Encouragements, but chiefly upon his better thoughts, he suddenly altered his purpose; and argued and declared his Opinion against the King.

Now let any Man read the Character of this good Judge, as given by Sir Harebottle Grimston (in the Prefaces to his Reports) and let him also read the Excellent Character of Sir Harebottle Grimston, as given by Bishop Burnet, (in the first Volume of his History) and upon both, judge whether Sir George Croke ought not to be believed to be a Man of uncommon Virtues; and if this great and good Man staggered under the Temptation, and found his Dependance on the King, so great a Tryal to his Honesty, what must have been the Case, of those Judges whose Vertues did not grow up to so uncommon a size?

The History of these, as well as precedings Times, informs us, that many Judges have split upon this Rock; and from a base Time serving Spirit have made Ship-Wreck of their Honour, their Consciences and their All.

King James the Second, aiming at a Power to dispense with the Laws, repeated the Iniquity of former Times, by endeavouring to make the Judges the Tools of his purposes. Rapin tell us(q)

that he took care to send for them, one by one, and talk’d with them privately in his Closet, in order to persuade them to declare for his dispensing Power, telling them, that he would have no Judges but such as were of his Opinion: Upon this Sir Thomas Jones was so bold as to say, Possibly you may find Twelve Judges of your Opinion, but you will never find Twelve Lawyers to be so. My Author says, Four flatly refused to comply, and were immediately turned out, and the King appointed in their stead Four others, of more pliable and submissive Understandings.

Edition: current; Page: [791]

These pieces of History serving to illustrate the Truth of what has been observed, I thought proper to mention them. What has been may be, and like Causes are naturally productive of like Effects!

If things were so circumstanc’d, that the Interest of a Governor might never Interfere with the Interest of the People, the Danger of this Dependence would be much the less; but such is the State of Property within this Colony, either from the legal Imperfections of our old, or the seeming Inconsistent Demands, or difficult Terms of our new Grants, that if hereafter a Governor should be placed over us, who shall consult his Gain more than his Honour, the enriching of himself more than the prosperity of the People, and to that End shall lay hold of every Advantage, which the Ignorance or Carlessness of former Times, may have furnished him with, such Governor, assisted by Time-serving and pliant Judges and Officers, wholly at his own disposal, may hereafter prove an Instrument of as great Oppression and Cruelty within this Colony, as ever were Empson and Dudley in England, in the Days of King Hen. VII. And Judges, with Power to determine according to Discretion, under the Direction of such a Master, may have as much Colour of Law (I am sorry that I have Occasion to say it) to justifie their Proceedings, as those wicked Men had.

But thirdly, What Increases the Danger of this Equity Court to the People of this Colony is, that if the Judges should exceed their Jurisdiction, and assume a Power to try all Causes in a Course of Equity, that are triable at Law, there is no Court that has Power to prohibit or restrain them: And if they act Arbitrarily in their Sentences or Err in their Decrees, the Decree is absolute, and cannot be appealed from, unless the Appeal be for more than One Hundred Pounds Sterling: so that the Judges of the Supream Court will be absolute and final in any Decree not exceeding that Sum. But if the Decree be for a greater Sum, then the Appeal is only to the Governor and Council; and if the Governour should be interested against the Party, as in all Crown Cases he must needs be, then is the Remedy very uncertain; for a Governor will probably be a very unequal Judge, where he himself is Party. And by the King’s Instruction (49) no Appeal will be allowed on the Judgement of the Governor and Council, unless the Sum appealed for, exceed Three Hundred Pounds Sterling, so that the Governor and Councill will be absolute and final for any Decree not exceeding that Sum. But if the Appeal be for a greater Sum, and be carried before the King in Council, how great must the Hardship of the Subject be, who will be put under the Necessity Edition: current; Page: [792] of such an Appeal! By reason of our distance from his Majesty, the Fountain of Justice, and the great Expence that must attend the carrying an Appeal before him, the Subject here, will many Times find, that Remedy worse than the Disease, and be obliged, when he has fallen under the Decree of a Court at the Kings Suit, to purchase his Peace of a Governor almost at any Rate, rather than be reduced to the Necessity of carrying an Appeal to the King.

Now the Case is much otherwise in England; for if the Party be aggrieved in either of these Cases, a cheap and easy Remedy is to be had, by a Restraint that may be put upon their arbitrary Proceedings, or an Appeal before Judges, perfectly indifferent, who can have no Interest in the Case, but only to do their Duty.

These Considerations among some others which might be named, taken from the Circumstances of this Country, add very much, in my Opinion, to the Reasons Why no Court of Equity in this Colony should have any being or Authority, without the consent of the Legislature; who in the Creation of such a Court may so Mould and Fashion, Limit and Check it, that the good Ends proposed by it, may be secured, and the Dangers that attend it, may be prevented.

From what has been observ’d it may in some Measure appear that but civil Polity is very imperfect. It will ever be so in Infant Settlements; but it is our Happiness that we have Power to propose, and Liberty to choose the Means of our Perfection and Advancement. To this End we have our General Assembly, by whose Wisdom and Care, those Laws may be provided, which may best promote the Publick good. The Settlement and Establishments of Courts is in its own Nature a matter of the greatest Importance: They are the Pipes by which the Laws are conveyed to the People. The best Laws in the World are of no Effect without them. If these Pipes are not well made, and well laid, the Waters that descend from the pure Fountain of Justice, will be often interrupted and polluted in their Conveyance.

How well worthy is it of the Wisdom and Care of the Legislature, that the Law may have free Course, and be equally dispensed to the King and all his People? This cannot be secured but by a just Settlement and due Subordination of Jurisdiction. The Wisdom of our Ancestors may serve as a Guide, and their Example may exhibit the Plan, according to which we may, as near as possible, conform our Courts. This Wisdom has display’d it self, in that they have always taken Care to give no more Power to a Court, than Edition: current; Page: [793] might be Serviceable to the end for which it was instituted. Their Maxim in this Case has ever been this, Cui plus licet quam par est, plus vult quam licet, that is, that Court which has more Power than it ought to have, will often use more than it should. Again, our Ancestors when they conferred Power, they ever put it under a Bridle, that it might not deviate from or exceed its bounds. This is seen in the never failing Check, which is put upon every Branch of Jurisdiction. Happy should we be if we had our Courts, as suitable to our Convenience, and under as sufficient Checks, as they have. The same Courts we cannot have, because their Jurisdiction is limited to the Realm of England. Those golden Pipes of Justice are too short to reach over the vast Atlantick, and they would not Suit our Conveniency, if they could be extended hither, ’twould be an Intollerable Burthen to send to Westminster for every Writ; and for the Subject here to go so far from home to obtain Justice; and it would be as great a Hardship for my Lords, the Judges, to take America within their Circuits, in order to dispence Justice to the People here. Our remote Scituation renders the Administration of Justice by the same Courts inconvenient and impracticable.

But tho’ the same Courts cannot conveniently extend, yet the same Laws which declare the Rights of Freemen do extend. We hold under the same grand Charter with the People of England: We have the same fundamental Rights, Privileges and Liberties as they have. Hence we have a Right to choose the Laws by which we will be governed; we have also a Right to be governed only by such Laws. These are the Birth-right of English-men. These summarily comprehend those Felicities which distinguish us from all other People. Our American Abode has put no Limitation on these Rights, but what necessarily flow from our Dependence; a Dependance vastly to our Advantage, which conveys to us the Protection and superiour Wisdom of an indulgent Parent. Hence we have a Right to choose every Law that is not repugnant to the Laws of England; and to choose every Law of England, that suits our Convenience; and to refuse every Law of England that in its Original Institution was not intended to oblige us. By this we have a Right to choose such Courts as best suit our publick Convenience; and to refuse Submission to any Court, not erected by a sufficient Authority. These are the Privileges of English-men in their original Purity and native Perfection. Agreeable hereto, the great Courts in England, the Fountains of Justice and the Dispensers of the Law, have ever been subject to the Legislature. Their Authorities cannot be altered, nor Edition: current; Page: [794] their Names changed, nor a Term shortned, nor lengthen’d, nor their Times of sitting appointed in any other Seasons of the Year, nor even a Return Day altered, without an Act of Parliament.(a)

If our Mother Country enjoyed this Right with respect to her Supream Courts, it follows upon the Principals of English Liberty, that we have the same Rights, with respect to ours. Great Care should be taken that we Copy after her Example in the Exercise of this Right. To do this, we ought duly to proportion the Power of Jurisdiction in the Distribution of it; and never to give the Power, without the Check. If these Admonitions are well attended to, if this Example is truly Copied, we shall act like Children, worthy of such a Parent. To admit like Courts, with like Powers, without like Checks, and this under the Notion of its being the Privilege of English-men, to do so; is to deceive ourselves with an imaginary Good, but in truth a real Evil. It is not to imitate the Example of our Mother Country, nor any part of our Interest or Duty. She form’d her Courts upon the Plan of publick Convenience, we then only act up to her Character, and Copy after her Pattern, when we do the like. To have Power to do so, is the Right of Free-men, and to exercise that Power, is to enjoy that Right: But to acknowledge a like Jurisdiction, without any Check, is not to consult either our publick Convenience, our Interest or our Happiness; ’tis not to preserve our Privileges, but to betray them, by giving up our Lives, our Liberties and Estates to an unbridled, and therefore to an arbitrary Power.

I will not affirm that our Supream Court, as a Court of Common Law cannot act legally by Virtue of an Ordinance, but whether it can or not, may be made a Question. However, as Ordinances are liable to sundry Inconveniencies, and are in their Nature temparary, and expire with the King who made them, therefore in Order to render the Administration of Justice, within this Province, stable and certain, and to give our Supream-Court Duration, and a proper Check, I think an Act of Assembly very needful. And I am humbly of Opinion, that all Courts of a Supreme and general Jurisdiction, either in Law or Equity, are in their Nature most properly the Objects of the legislative Power, and ought to be under its Check and Controul; for those Courts that are to convey the Law and Right to all, should suit the Conveniency of all, and in all respects be calculated for the publick Good; and how can this be so well consulted or secured, as in the great Court, where all concerned are represented?

Edition: current; Page: [795]

I have heard it often said, that our Supream-Court is by the Common Law, the Reason assigned is because the great Courts at Westminster are so; It is alledged that they are by the old Custom of the Realm, and a Part of the Common-Law, and that if the Laws Extend the Courts must, unless we say the whole Extends and that the Part does not. Hence it is inferr’d that we have no need of an Act to establish our Courts because they stand upon a much better Foundation without it.

I have already offer’d the Reasons why I cant’t be of Opinion, that any Court either of Law or Equity now in being within this Colony, can be said to be by the Common-Law of England; and I must confess, that if there is any Force in this sort of Reasoning, I can’t discern it. It seems to me that this Argument can be of no Service to our Supream-Court, unless it is the very same numerical Court with those which are called the great Courts at Westminster; and also unless it can be proved, that those very Courts were established by Custom, without an Act of Parliament, both these are absolutely necessary, in my Opinion, to make the Argument conclusive. For if our Supream Court is not the same Numerical Court with the great Courts at Westminster, then the same Arguments which prove those Courts to be Courts by Custom, will not prove our Supream-Court to be a Court by Custom. Again, tho’ our Supream-Court be the same Numerical-Court, with those great Courts, yet if those great Courts were Originally created by Act of Parliament, then they are not by Custom; and so no Part of the Common-Law in the Sense which is supposed. And it will also follow from thence that if those great Courts were established by an Act, then our Supream-Court ought to be established in the same Manner; and thus the contrary of what is pretended by this Argument will be proved.

But that the Supream-Court of this Colony is the very same Numerical Court, with those at Westminster, will not (I suppose) be affirmed; for to make it the same Numerical Court, it ought to have the same Numerical Judges, and Officers, the same Jurisdiction over England, and ought to sit at the same Times and Places which the Law has appointed, for those great Courts to sit and Act in; that is, the Judges of the Supream-Courts at Westminster are the Judges of the Supream-Court of New-York, and the Judges of the Supream-Court of New-York, are Judges of the great Courts of Westminster, and so of the rest of the Officers. And the great Courts, of Westminster, have the same Jurisdiction with respect to Persons and Causes within this Colony as they have in England; and the Supream-Court of New-York, has the same Jurisdiction Edition: current; Page: [796] all over England as it has over this Province. Also, if our Supream-Courts be the same Court, it cannot sit in any other Terms and Places than those which the Laws of England have appointed for those great Courts to sit and act in. These are Consequences that necessarily follow from a supposal that our Supream Court is the same with those great Courts at Westminster, which are said to be by the Law, and a Part of it.

Now let our Supreme-Court be examined by these Properties of the Sameness of Courts, and then let any Man judge whether our Supreme-Court is the same with those at Westminster, or not; particularly let him enquire whether the Judges and Officers of the Supreme-Court of New-York are the Judges and Officers of the Supreme-Courts at Westminster; whether the Judges of the Supreme-Court at New-York have a Jurisdiction all over England, or not; whether they ordinarily hold their Court at Westminster, and sit in the Stated Terms of Hillary, Easter, Trinity and Michaelmass, and if upon such Enquiry, it be found, not to be the same Court with those at Westminster, but a different Court, with different Judges and Officers, which have no Jurisdiction in England, but only over this Province, and does not sit at Westminister in the Stated Terms above-mention’d, but at other Places and Times mentioned in an Ordinance, within this Colony, then the Argument from the Identity or Sameness of Courts, proves nothing in favour of our Supreme Court, but leaves it to stand by it self upon its own Bottom. And tho’ those Courts at Westminster are by Custom and a Part of the Common Law, and as such, by this Argument, ought to extend, yet it does not appear that they have to this Day been extended; and considering our Distance from England, it seems unreasonable (notwithstanding this Argument) to suppose they ever will.

This Consideration convinces me of the Inconclusiveness of the Argument, to prove the Being and Existence of our Supreme Court by the Common Law, upon a Supposal of the Extension of that Law, because it is not the same Court with the great Courts at Westminster, as is pretended, but in Truth and Fact another Court, which does not stand upon the same Foundation with them.

But as to the second Point necessary to make the Argument conclusive, to wit, That the Courts at Westminster were not created by Act of Parliament but by Custom. I believe this Assertion can never be proved, and I think the contrary highly probable to be true, from what has been observed already, to wit, That all the Changes in the most circumstantial Matters relating to those great Courts, even the appointing of new Return Day, must be by Act of Edition: current; Page: [797] Parliament. Now if so minute Circumstance, relating to the Jurisdiction of those Courts, requires an Act to establish it, surely it implies very strongly, that the Court it self at first was created by an Act. ’Tis possible, that the Darkness of past Ages may have obscur’d the Evidence of this Matter, so that nothing relating to it can be directly proved, either one way or other; yet if we consider the Nature of a Custom before laid down, it is hard to conceive that any Court could acquire the Original of its Jurisdiction in that way. And as in the Nature of the Thing, it is very unlikely that those Courts did derive their Original from Custom or any thing less than an Act of Parliament, so I cant help thinking but that it is very probable that upon a proper Search into Antiquity, those great Courts will appear in Reality to have been established in that way.

If it should be further objected, against the Necessity of an Act, That tho’ our Supreme-Court is not the same numerical Court with those at Westminster, yet as the Law is the Foundation of those Courts, so the same is the Foundation of ours.

I would ask, In which Way? I have never heard of any other Way of accounting for this, but by Extension of the Laws. Now according to the Idea that we have of the Extension of Laws, nothing can be here by an Extention of the Laws, but the same Laws that are in England; that is, what is Law in England is Law here, and what is by Law in England is by Law here; Thus the same Courts that are by Law, and a part of it in England, by the Extension of the same Laws, the same very Courts must extend, and are a part of the Laws here. If this be the Meaning of the Objection, it has been already answered.

But if it be said, That the Laws extend so as to create here like Courts, tho’ not the very same numerical Courts as in England.

To extend by Likeness is what I don’t understand; such a Mode of Extension, seems inconsistent both with the natural Idea we have of it, when applied to Matter, and the Idea which we have of it when applied to the Laws. For Example, thus, We say, that Hudson’s-River extends from the City of New-York to the City of Albany, and that the Province of New-York extends from the Ocean, on the South, to Canada, on the North. Now this is an Extension of the same River, and the same Tract of Land, and not of the like River, or the like Tract of Land. Thus also when we say, the Laws extend, we mean that the same Laws extend and not like Laws. Thus the People of England have by Law a Right to choose the Laws by which they will be Edition: current; Page: [798] governed: We say, that by the Extension of the Laws, this same Right belongs to us. Again, when they have chosen a Law they have a Right to be governed by that Law, and no other, till by their Consent it is altered or repealed. We say also, that by the Extension of Laws, this Right belongs to us. Again, the People of England have by Law a Right to choose their Courts, and to consent to the Way in which they will have the Laws administred to them by these Courts. We say, that by the Extension of the Laws, this Privilege belongs to us. Again, the People of England by Law have a Right to refuse Subjection to any Court which is not erected by a lawful Authority. We say, That by the Extention of Laws the People here have the same Right &c. &c. &c. This is what I understand by the Extension of the Laws.

Now, in all these Cases, it is not the like Laws which extend, but the very same Laws, the same Rights, the same Privileges which the People of England enjoy, and which are as capable in the Nature and Circumstances of Things, of being extended from England into this Colony, as they are of being extended from one County or Town in England, to another. Hence also, by the Extension of the Laws, we say, that we hold under the same grand Charter of Liberties with the People of England, and not a like grand Charter, et sic de Caeteris.20

But to say, that the Laws of England extend Courts by Likeness, is to affirm a Mode of Extention, which is as much unknown to the Law, as it is inconsistent with the Nature of Things. And were it possible that the Laws of England, cou’d extend Laws and Courts by Likeness, and give them Being and Force here, independent of our Acceptance and Approbation of them, then tho’ there be some Laws and some Courts in England which have been chosen and erected there with a particular Application to some Persons, Places, Times and Facts, which have no relation to this Country, nor suit our Convenience or Inclination, yet in this way of reasoning, the Laws of England would extend such Laws and such Courts to this Colony, without any Propriety or Necessity, and even against our Consent. Whether this Doctrine is consistent with our Right to choose the Laws by which we will be governed, and to choose the Courts which shall administer them to us, I shall leave to others to determine. By this Rule it seems, that tho’ the People of England have consented to a Law for themselves, and a Court to dispense that Law among themselves, without any Intention to bind us by that Edition: current; Page: [799] Law, or by the Authority of that Court, yet we are obliged, even without or against our Consent, to admit the Authority of like Law here, and to yield Obedience to a like Court, that shall attempt to put it in Execution.

To apply this a little; the People of England very anciently consented to give the Tenths of the Produce of their Lands, and Labour on those Lands, to the Clergy; and Tythes are still due throughout the Kingdom of England, by Virtue of the Law that was there made by such Consent. Now if the Laws of England extend by Likeness, and independent of our Consent and Acceptance, the Tythes of our Land, and Labour thereon, are as much due here to the Clergy, as they are there; which considering the high Price of Labour in this Country, will reduce our Lands to about six Tenths of their present Value; so that he that has held Lands in this Colony worth One thousand Pounds in Times past, will by the Extension of this Law, find the Value of his Estate reduced to Six hundred Pounds, or there-abouts.

How well this Doctrine will agree with our Landed Men, I can’t positively determine; but I am a little afraid that if Tythes were demanded of them, by Virtue of the Extension of the Laws of England that they would be ready to deny that the Law concerning Tythes does extend: And if it should be urged, that if the Laws extend, the Laws concerning Tythes must extend, unless they admit that the whole does extend, and the Part does not, I believe they would be able, without much racking their Inventions, to find Shifts and Distinctions enough to evade the Consequence of that Argument. And tho’ they might not well explain what is meant by the Extension of the Laws, nor know how to distinguish those which do extend, from those which do not extend, nor understand the true Ground of the Extension of some, and the Non-Extension of others, yet I doubt not but that they would insist very earnestly, that the Application of those Laws to the State of Things in this Country, would be highly unjust, in as much as it would take by Force from the People here, what their Fore-fathers in England gave by their Free-will; and they would be ready to argue, that tho’ the present Possessors of Lands in England pay Tythes, yet it is but just they should do so, because they either received them by Inheritance with that Incumbrance, or if they purchased them, they consequently paid the less for them. But for our parts (they would say) we hold our Lands at their full Value, without such Incumbrance, and have a Right to do so; and we don’t think it consistent with the fundamental Rights of English-men, or natural Justice, or any just Consequence of the Extension of the Laws of England, Edition: current; Page: [800] that we should be obliged to part with any Share of our Property or Possessions, without our Consent. But when We, like our Fore-fathers, have granted Tythes out of our Lands, then, and not till then, will the Clergy have a Right to demand them.

What is here said, with respect to Tythes, may be said with a respect to all other Ecclesiastical Laws, and in like manner of Ecclesiastical Courts; for these Courts are by the old Law of the Realm, and at least as Ancient as the great Courts at Westminster; and the same Argument which will give being to our Supream-Court, upon the Account of its being like the Courts of Westminster, will give being to spiritual Courts within this Colony, upon the Account of their being like to the spiritual Courts in England. Now the Introduction of those Courts into these American Colonies, by Virtue of the Extension of the Laws of England, I believe will generally be as disagreeable to the Men of this Generation, as it would have prov’d a Disappointment to their Fathers to have found them here, who fled by Thousands into these Parts of the World, in order to get out of the reach of them.

From what has been observed, I think, these two points are very Evident, first, That the same Courts as are in England, do not extend to this Colony, Secondly, that like Courts (in the sense pretended) consistent either with Reason, Law, or the Liberties of Englishmen, cannot extend hither.

I have one Consideration further to add, and it is this, That the very supposal, that our Supream-Court subsists by the Common-Law of England, meerly by Virtue of its likeness to the great Courts at Westminster, is an Opinion the most Fatal and Destructive to that Court, that could possibly have been advanced; in as much as upon that Supposition, all its past and present Proceedings, must be deemed illegal, null and void. This will appear if we consider, First, That if the Law extends those great Courts, by likeness, then it extends those Laws that concern the Administration of Justice in those great Courts: so that THEY must be the common Rule and Measure of both, or at least, both Courts must be under LIKE LAWS and RULES; for to suppose our Supream-Court to be under Rules and Laws, differing from, or unlike to the Rules and Laws of the great Courts at Westminster, supposes it to be a Court unlike to those great Courts, in its most essential Characters; and by this means the Foundation of the Argument for the being of our Supream-Court, in respect to its likeness to the Courts at Westminster, is taken away, and it can’t exist by the Common-Law, in the manner which is pretended. Secondly, If the Common-Law extends those Courts by likeness; then in every respect Edition: current; Page: [801] this Similitude must be preserved; and if our Supream-Court in any respect fails of that likeness, then it is not in that point like the great Courts of Westminster, and Consequently can’t have it’s Authority by the Common-Law, for that unlikeness; but must be authorized by the same Authority, or an equal Authority, with that which would erect the same unlikeness in the great Courts at Westminster, from what they at present bear.

Hence it follows, that whatever Changes cannot be made, without an Act of the Legislature, with respect to the great Courts at Westminster, the like Changes cannot be made without Act of the Legislature with respect to our Supream Court here; and those Alterations in those great Courts which if made by a less Authority, will vitiate the Proceedings of those great Courts there. The like Alterations, if made by a less Authority, will vitiate the Proceedings of our Supream-Court here. These Consequences seem undeniable. Now to apply them in a few Instances.

First, If our Supream-Court Exists, by its likeness to the Courts at Westminster, then our Judges ought to be authorised in the same manner as the Judges of those great Courts are authorised; and if the Judges there, were authorised like ours, and their Proceedings would be void for want of a legal Authority, then also upon the principles laid down, the Proceedings of our Judges will be void.

Now the Judges of the Supream-Courts at Westminster, are made by Writ or Patents, in a certain Form, to wit, the Chief Justice of the King’s-Bench is created by Writ, the form of which is established by Act of Parliament(a) the other Judges are created by Letters Patent, the Form and Words of which are prescribed by the Law,(b) Again, the Form of these Writs and Patents are so essential to the Offices conveyed by them, that they cannot be altered without an Act of Parliament. To this purpose my Lord Coke(c) says,

That it is a Rule in Law, that Ancient Offices must be granted in such Forms, and in such manner as they have used to be, unless the Alteration were by Authority of Parliament.

And(d) that all Commissions of new Invention are against Law, until they have allowance by Act of Parliament.

Edition: current; Page: [802]

Again, these Judges now hold their Offices during good Behaviour, and the Barons of the Exchequer always have so held their Offices.(e) Hence an Authority in England, conveyed in any other manner, or by Commissions in a new Form, would be illegal, the proceedings by Virtue of them, would be coram non Judice,21 and if Exception be taken, will be consequently void.

Now, let us consider whether the Chief Justice of our King’s-Bench is created by a like Writ, or any Writ at all? Whether our Judges are Commissioned in the forms prescribed by the Laws of England, or by a new form devised by the Governours of this Colony, or by the Governours with their Council? Particularly, whether our Judges, or even our Barons of our Exchequer have their Patents during good Behaviour: I believe, upon Examination, it will be found that the form of Constituting our Judges, in all these respects, is unknown to the Laws of England, nor like the forms used there, and this by no Act of Legislature, to warrant the dissimilitude or unlikeness.

The Consequence of which, is, that if our Supream-Court exists a-like Court, and under the like Laws; and our Judges and Barons ought to be created in a like Manner by Writ or Patents of the same Tenour, and if they are not, and the Unlikeness is created by a less Authority than could lawfully create the same in England, I mean, by an Act of the Governor and Council in the King’s Name, and not by Act of the whole Legislature, then our Judges have not heretofore had, nor yet have a lawful Authority to act by their new invented Commissions; there having been no Act of Legislature to warrant the new Form of their Commissions; and consequently, all their past and present Proceedings, are unlawful and void.

Secondly, As our Judges and Barons ought to receive their Authority by Writ or Patents, like those in England; so also their Authority ought to be exactly alike and subject to the like Checks, as the Authorities of the like Judges are in England. Now these cannot be preserved without an actual Existence of Four distinct Courts of Chancery, Kings-Bench, Common-Pleas and Exchequer within this Province; for if the Powers of all are united in One, and the same Persons are Judges in all Causes: Then the Authorities are unlike to the Authorities of the like Judges of those great Courts at Westminster, and their mutual Check one upon another, is entirely lost. For Example, Edition: current; Page: [803] The Chancellor, as Judge of the Common Law, has his Jurisdiction limited principally to Disputes concerning Letters Patents, and Things that relate to the great Seal, and meddles not with Pleas of the Crown, or Common-Pleas, or the Matters that concern the Revenue. The Kings-Bench principally hath Jurisdiction over the Pleas of the Crown, with which the Chancery, Common-Pleas and Exchequer do not intermeddle: The Court of Common-Pleas has Jurisdiction only in civil Causes, and has nothing to do with criminal Prosecutions; and the Exchequer is confined to Matters that concern the Revenue. Indeed in some respects they have a mixt Jurisdiction, but I think this Distinction is always supposed in the Forms and Methods of Proceeding in the respective Courts.

Again, these Courts have a Check upon one another, as has been observed already. For Example, the Kings-Bench can reverse the Judgments of the Chancery and Common-Pleas, if they err: And the Judges of the Common-Pleas and Barons of the Exchequer can reverse the Judgments of the Kings-Bench, if that Court errs. And that these Authorities of the respective Courts may be kept distinct, and the Checks preserved; it seems to be one Reason of the Rule in Law, that nemo vtatur duobus officiis,(a) the Meaning of which is, That no single Person shall be Judge of two Courts.

Now I take it to be clear in Law, That no Power can unite the Jurisdiction of these Courts, or any three or two of them into one, and thereby alter the Authorities of the respective Courts, and dissolve the Checks which they have one upon the other, but that of the Parliament.(b) And that if the King by his Letters Patent, without an Act of Parliament, should attempt to unite those Powers, all Acts done by Virtue of such Union, would be unlawful and void.

Hence from the Premisses is follows, That if our Supream-Court does not subsist but by its Similitude to the great Courts at Westminster, and it is unlike those Courts in respect of the Union of the Jurisdiction of at least three Courts in one, and the Loss of the mutual Check that each should have upon the other; and this Unlikeness has been created not by Act of the Legislature, but by Ordinance of the Governour and Council (as in Truth the Case is) then all the Proceedings of our Supream Court, in Virtue of such Union, must be esteemed unlawful and void.

Edition: current; Page: [804]

Thirdly, If our Supream-Court be a Court like the great Courts at Westminster, and subject to the like Laws, then if those great Courts cannot sit at any other Times than the stated Terms of Hillary, Easter, Trinity and Michaelmass, unless they are altered by Act of Parliament, and if they should sit and act at other Times than are appointed by such Act, their Proceedings would be void; then also the Proceedings of our Supream-Court, if it sits and acts at any other Times, which are not appointed by Act of the Legislature, must be illegal and void.

Now it is certain, that our Supream-Court has never paid any Regard to the stated Terms of Hillary, Easter, Trinity and Michaelmas, nor has there ever been any Act of Legislature to authorize its sitting at any other Times and Seasons than those Terms: ’Tis notorious, That it has sate for more than thirty Years last past, at Times appointed only by Ordinances of the Governors and Council, for the Time being, who have at Pleasure shifted and changed the Times of the sitting of our Supream-Court, without Act of Legislature to warrant their so doing, or any Regard to the Laws concerning the Terms in England.

Hence it follows, from the Premisses, that if our Supream-Court subsists meerly by Virtue of its Likeness to the Courts in England; and its unlikeness in this respect, is created by a less Authority than the like Change could be created there; and if the Proceedings of these Courts, at other Times than are appointed by Act of Parliament, would be unlawful and void, then also the Proceedings of our Supream-Court at Times not warranted by Act of the Legislature, must consequently be unlawful and void.

These few Instances, I think, shew plainly, that nothing can be more disadvantagious to our Supream-Court, than to suppose that it has its Being from the Common Law, meerly upon the Account of its being like to the great Courts at Westminster, unless it can be said, that it is a like Court, under unlike Rules and Laws; but this Notion is repugnant to the Nature of the Thing, and would suppose the Common Law in the Creation of it, to have acted inconsistent with it self, and to have been Author of Contradictions, that is, not to have created it at all.

I believe none will say, that the Instances given of the unlikeness of our Supream-Court to the great Courts at home, are in matters of little Moment, and that it may properly be said to subsist by the Common-Law, by Virtue of its likeness, notwithstanding this Dissimilitude in the points hinted at. For sure, it is of the highest Consequence to know what Authority a Judge has, seeing that is to be the Rule of his Actions, and the Subjects Obedience. Edition: current; Page: [805] Now this is conveyed by his Commission, and if his Commission be Lawful, he has a Lawful Authority, otherwise not.

Again, it is of the last Consequence to the Publick, that the bounds of Jurisdiction, and the Checks upon Power, should be inviolably preserved; and if less than an Act of Legislature should be permitted to remove, alter or change those ancient Establishments, then the strength of the Constitution would be broken; and the Law it self, in Consequence of such Permission, might be given up into the Hands of an Arbitrary Power.

Again, If the King by an Ordinance can alter the Terms, without the concurrence of the other Branches of the Legislature, then it would be in his Power to appoint the sitting of the Courts so often as to prove burthensome to the Subject, or so seldom as to obstruct the due Execution of the Laws; for if the King may appoint what Law Days he pleases, independent of the other Branches of the Legislature, he may keep his Courts always sitting, and oblige his Subjects to a constant Attendance, to the great Obstruction of Husbandry and Commerce, and the Ruin of Persons and Families, or he may appoint the Terms but once in the ten Years, and so in Effect deprive his Subjects of the Benefit of the Law.

From these Considerations it appears, that our Ancestors, with great Reason, have always been concerned in the Regulation of the Powers and appointing the Times of the sitting of their Supream-Courts; and there seems to be the like Necessity why our Supream-Court should be subject to the Order and Direction of the Legislature here.

I have taken the more pains to set forth this Necessity, and to expose the insufficiency of the Arguments, that I thought might be offered against it, because I have heard the like started before this Time, and great Stress laid on them by some Gentlemen among us, whose Persons and Opinions I Esteem and Honour, who seem to think an Act of the Legislature not wanting, and that our Courts stand upon a much better Foundation without it; and that to suppose our Supream-Court to require an Act, strikes at the Root of all our Priviledges, as Englishmen. But as the Doctrine of the Extension of the Laws, is the sole Foundation of the opposite Opinion to that which I have advanc’d, I can’t help saying, that I think it has been greatly mistaken and misapplied in this Instance; and I conceive, as to this Point, that the Law has extended nothing more than a Right to us to constitute our Courts so as best to suit our Convenience; and this, I think, is all that we can wish to be extended. This Construction does preserve our Liberty to choose Edition: current; Page: [806] such Courts, as we like, but the other destroys it, in that if the Law extends Courts by likeness, then Courts must exist here meerly because there are like Courts in England, without any Liberty to us to reject or refuse them.

Upon the whole, tho’ our Supream-Court, in my humble Opinion, neither does nor can, in its present Constitution, subsist by Virtue of the Extension of the Laws of England, but subsists meerly by an Ordinance, nor was (I believe) ever thought to have had any other Foundation, till lately; yet I think, it ought to have a better, and to be Established by Act of the whole Legislature; which may give it Duration, and such Powers as are Necessary for the equal Distribution of Justice, and such Checks as may bound its Jurisdiction and prove a sufficient Safegard against its Errors. The Prosperity of this Colony is greatly concerned in this matter, and the secure Enjoyment of all our Priviledges depends very much upon it.

We are happy under the Administration of the best of Kings, who is as tender of the Liberties of his People, as of his own just Prerogatives. This assures us, that every thing that is proposed by this Assembly for our Common safety, will meet with the Royal Approbation. His Excellency our Governor has amply declared his readiness to concur with you, in every thing that may advance the publick Good. The Prayer of the People is very Importunate for the Establishment of Courts. The publick Tranquility, as well as Safety, seem to require it: Much is expected from this Assembly, the Eyes of the People are fixed upon you, and wait with Impatience: The Issue of your Determinations: And the Care which you have taken to inform your selves of what is most for the publick Good, is a plain Indication, that you intend to do your utmost to Promote and advance it.

I think, Mr. Speaker One Court of Equity is absolutely necessary in this Colony. To Constitute and Establish this, under due Regulations and proper Checks, is well worthy of the Wisdom and Care of this House. To suffer such a Court without such Checks, is to give up our legal Securities into the Hands of an Arbitrary Power. I think no Court of Equity within this Colony, can be beneficial and safe unless under these two Checks. First, The PROHIBITION of the Supream-Court, if it takes Cognizance of any Cause for which the Common-Law has provided a Remedy. Secondly, A cheap and easy APPEAL in all Cases of Error, to (at least) some one Superiour Jurisdiction among our selves; before we are reduced to a Necessity to carry an Appeal to England. The first of these will preserve the Dignity and Authority of the Common-Law; and both will go a good way towards preventing an abuse of Power; a Power without these Checks will be exceeding dangerous in any Hands, but Edition: current; Page: [807] most of all in the Hands of a Governor. My Lord Coke says, that it is an Old saying that great Men in judicial Places, will never want Authority.(c)

To Conclude, ’Tis with the greatest Submission that I tender my Opinion upon these Points. I have said nothing with a Design to offend any Man, nor have I omitted saying any thing, that I thought might tend to the publick Good. Liberavi animam meam. I have endeavoured to discharge the Trust, and support the Character, with which this House has honoured Me. You have my sincere and real Sentiments. If I have err’d in any thing, it has been unwillingly. I am heartily a Friend to this Colony, and earnestly wish its Prosperity. I have no Interest in the Points in Question, but what are common to all the Freemen, of this Province. I profess the greatest Veneration for the Laws of my Country, and am glad of every Opportunity to do them publick Honour. They place our Liberties upon the firmest Basis, and put our Properties under the surest Protection. I rejoyce in the Security that we have of a long Enjoyment of them, by the Settlement of the Succession in the House of Hanover. ’Tis the Excellency of our Constitution, and the Glory of our Princes, that they are Sovereign over Free-men, and not Slaves. ’Tis the Misery of an Arbitrary Government, that a Man can enjoy nothing under it, that he can call his own. Life, Liberty and Property are not his, but all at the Will and Disposal of his Tyrannical Owner. I don’t wonder that our Ancestors have been always so jealous of their Liberties: How oft have they bravely Fought, and nobly Died in the Defence of them? We have received our Liberties and our Laws, as an Inheritance transmitted to us in the Blood of our Fathers. How highly therefore should we prize and value them! And what Care should we take, that we and our Posterity may enjoy them in their full Extent? If this be our happy Case, we shall sit under our own Vines and our own Figg-trees, and none will make us afraid. We shall see our Country flourish, and our selves an happy People. But if an Arbitrary Power over our Liberties and Properties, be let in upon us but at a BACK DOOR, it will certainly drive many of us out of our Habitations; and ’tis to be feared, will once more reduce our Country to a Wilderness, and a Land without Inhabitant: Which we doubt not but this Honourable House will take Care to prevent.

William Smith.
FINIS.
Edition: current; Page: [808] Edition: current; Page: [809]

30: Joseph Murray, Mr. Murray’s Opinion Relating to the Courts of Justice in the Colony of New-York (New York, 1734)

Speaking to the New York Assembly five days after William Smith in the selection immediately above, Joseph Murray, an immigrant from Ireland and the son-in-law of Governor Cosby, took a different tack. He agreed with Smith “that the People of this Colony are undoubtedly entitled to all the Customs, Laws, Liberties and Privileges of Englishmen,” but he denied that any of what he called the “four fundamental Courts” of England, including the court of equity, owed their establishment to an act of Parliament. Rather, he argued, that they were “incident to the Constitution, under which we think our selves happy to be,” and were “as ancient as the Kingdom it self, to which we belong.” Tracing the authority of those courts to the same “Immemorial Custom in England” that was the foundation for all the other “Laws, Constitutions, Liberties and Privileges” that Englishmen, in the colonies and the metropolis, valued so highly, he warned the Assembly that the denial of this source as the only basis for the colonial court system could be “most Destructive . . . to the Liberties and Privileges of the People of this Colony” by providing fuel to those who were in favor of extending prerogative power in the colonies and denying to them their fundamental rights as English people. Both in the text and in an appendix, Murray cited many instances of the New York Supreme Court’s acting as an equity court in previous decades and, questioning the Assembly’s competence to legislate Edition: current; Page: [810] on such matters, argued that an act to establish courts would be redundant. Murray’s speech was one of the most penetrating explorations of the customary origins of the English constitution and the implications of that fact for colonial constitutional development. (J.P.G.)

Edition: current; Page: [811]

Mr. Murray’s Opinion Relating to the Courts of Justice In the Colony of New-York; Delivered to the General Assembly of the said Colony, at their Request, the 12th of June, 1734.

Mr. SPEAKER;

By the Desire of this Honourable House, I appear here this Day, humbly to deliver my Thoughts upon the subject Matter of three Petitions, (exhibited to this House) one from several of the Inhabitants of the City and County of New-York, another from several of the Inhabitants of the County of Westchester, and the third from several of the Inhabitants of Queens-County, relating to the Courts of Justice in this Province; A Matter not only of great Expectation, but really of very great Concernment to the good People of this Colony; a subject which deserves to be handled by Persons of far superior Abilities than what I can pretend to. However, Mr. Speaker, I esteem it a great Honour done me, and I own my self much obliged to this honourable House for their Opinion of me, in supposing I cou’d be capable of giving them any Information herein; and tho’ I am sensible of my own Inabilities, yet since they have desired it, I shall endeavour to deliver my Sentiments in the best Manner I am capable of; and as there are many Things which I conceive will be proper (on this Occasion) to mention, I have chosen to commit them to Writing, least any of them might slip my Memory. But I must beg leave to acquaint you, that (being often interrupted while I was writing this) I have not been able to contract it in a narrower Campass, for want of more Time, which I hope will apologize for the Length of it.

These three Petitions, Mr. Speaker, (being pretty near of one Tenor) may therefore be considered together, the principal and material Parts of which (I conceive) may be reduced to three general Heads.

1st. The Petitioner’s own Opinions, (to wit) Being Inhabitants of the Province of New-York, (part of the Dominions of Great-Britain) they take themselves to be entitled to the Liberties and Privileges of English-Men.

Edition: current; Page: [812]

2nd, Some Suggestions contained in these Petitions (to wit) That our Courts are not established by Act of Assembly, as by the Laws of England, they ought to be, especially the Court of Equity, lately erected in the Supreme Court, which they take to be a Grievance, and destructive to the Liberties of the People, as it is constituted.

And 3dly. The Prayer of the Petitions, to wit, To settle the Courts of Justice by Act or Acts of Assembly.

As to the First, I do entirely agree with the Petitioners, That the Inhabitants of this Colony are intitled to the Liberties and Privileges of English Men, and I hope they always will continue so; the Pains that Mr. Smith took last Friday to prove this, has rendered it useless for me to enlarge thereon, (which otherwise I shou’d have done) wherefore shall freely own, and say on this Head, that I agree and joyn with Mr. Smith, That we are under the same Constitution, and entitled to the same Laws as are in England, and I shall beg Leave to add, what I suppose will not be deny’d, that as the Laws of England are in Force here, and the Inhabitants of this Colony, have a Right to the Benefits thereof, that what is Law, and what is by Law, in England, is, and ought to be the same here; and such Things as are Fundamentals, in and by the Constitution of England, must be Fundamentals here.

As to the second general Head, to wit, The Suggestions in the said Petitions, I conceive may be divided into four Particulars,

  • 1st. That the Courts are not established by Act of Assembly.
  • 2dly, That by the Laws of England, the Courts here ought to be established by Act of Assembly.
  • 3dly, Especially the Court of Equity lately erected in the Supreme Court.
  • 4thly, That the Petitioners take that Court to be a Grievance, and destructive to the Peoples Liberties, as Constituted.

As to the first Particular, viz. That the Courts are not established by Act of Assembly, I believe to be true, tho’ I remember some time ago there was a written Book brought into the Supreme Court by a worthy Member of this honourable House, who then was Chief Justice, wherein (as it was said) there were several Acts of Assembly which were passed in the Duke of York’s Time, among which Acts, one was said to be An Act for the Establishment of Courts, and was perpetual, the same Book (as I believe) was produced here by Mr. Smith last Friday, and that Act read, but whether that was really an Act of Assembly of this Province, or not, or is in Force or not, I cannot say; Edition: current; Page: [813] It never was among our printed Acts, that I know of, and I do not remember ever to have seen it, except in that written Book; But if that be an Act now in Force, then this Part of the Petition is not true, and what the Petitions pray to have done, is already done; but as I do not know that that is an Act now in Force, I’ll beg leave to suppose it is not, and then it must be allow’d to be true, That the Courts are not established by Act of Assembly, as the Petitions assert.

And so I proceed to the second Particular, under the second general Head proposed, viz. the Allegation, That by the Laws of England the Courts here ought to be established by Act of Assembly.

If this be true, and that they are not erected by Act, It must necessarily and absolutely follow. That there is not, nor has there been, for many Years past, any Supreme Court, or any other Court, legally established within this Colony, from whence must also follow, that all that has been done in the Supreme Court, or any other Court in this Colony, for many Years past, must be null and void; for if the Courts ought (by the Laws of England) to be established by Act of Assembly, and they are not, then they are not legally established; and if not legally established, whatever is done by a Court that has no legal Establishment, must unquestionably be void. And what an Inundation of unhappy Consequences must flow from thence, I shall leave to this honourable House to consider; they are too obvious to need enlarging upon.

I have heard but one Objection to this Consequence, which is this, That as to all those Cases, where the Parties have not pleaded to the Jurisdiction of the Court, they by omitting to plead to the Jurisdiction, have admitted it, and now must be bound thereby.

To which I beg leave to answer, If there was a Court legally established, which had a legal Power to try and judge of Matters arising within their Jurisdiction, and a Suit is brought for Matters arising out of their Jurisdiction; if the Party does not plead in such a Case, that the Matters did arise out of the Jurisdiction, but pleads other Matter, he shall thereby be said to have admitted the Jurisdiction, and be bound by it. But the Cases are not alike, for there, in the Instance put, there was a legal Court that had Power to try Things, within their Jurisdiction (and the Plaintiffs generally alledge the Matters sued for to have arisen within) and if the Defendant will not gain-say that, but plead other Matters, he thereby tacitly owns that they did arise within, and shall be estopped afterwards from saying otherwise, Edition: current; Page: [814] because, by pleading other Matters, he has admitted and allowed the Jurisdiction; now there, there was a legal Court, whose Jurisdiction was admitted. But here, if what is said be true, there is no Legal Court at all. But even in Case of a Legal Court, tho’ the Defendant does not plead to the Jurisdiction, but pleads other Matters; yet if it appears any where on the Record, that the Matters sued for were out of the Jurisdiction, the Judgment will be erroneous: for no Act of a Party can give Jurisdiction to a Court, if it appears the Court hath no Jurisdiction, as Lord Vaughan’s Reports, 405. So much of this Case as relates to the present Purpose, are in these Words, And no act of the Party gives Jurisdiction to the Court, by elapsing his time to plead to the Jurisdiction, if it appears by the Record, the Court hath no Jurisdiction, as in this case it did. To the same Purpose also is Keilway’s Reports 55 a.

And if it be so, in case where there is a Legal Court, and a Legal Jurisdiction, I conceive it will be more so, where there is No Legal Court at all; for if it shou’d not be so, where there is No Legal Court, it would always be in the Power of any two Parties, by their own Admission and Pleading, to give the Power and Jurisdiction of a Court to any Man they please, which I presume, no body will venture to say, any two Parties can do. So that, notwithstanding this Objection, the Consequences I before mentioned, must unavoidably follow, viz. That all the Acts of the Supreme Court, and other Courts in this Colony, for many years past, must be void. And it looks very odd to me, if what is asserted in these Petitions, be true, that so many worthy and learned Men as have been Judges in this Colony shou’d not have found this out before.

Wherefore it may be proper to enquire, how this Allegation is proved or appears to be True; and the greatest part of what I conceive has been said for it, will amount at last, only to this, That by the Laws of England, the King by Grant, cannot erect a Court of Equity in England. And to prove this, many Authorities were shewn, and many more might be shewn to prove the same thing, and I do own, and agree them all, as I said last Friday, to be good Law, and shall likewise agree, That in England the King cannot, by Grant, erect a New Court of Kings Bench, Common Pleas, or Exchequer, or any other Court with general Jurisdiction.

Thus much being allowed, let us consider, what is proved thereby, and I apprehend its plain from thence, and the Authorities produced on this head, do abundantly prove, that the Courts of Chancery, Kings Bench, Common Pleas and Exchequer, at Home (being Courts of general Jurisdiction) were not, nor Edition: current; Page: [815] could be erected by the King’s Grant; if so, those Courts in England, must have had some other Foundation, and that, I conceive, must be either by Act of Parliament, or by the Law without an Act. That they were, or either of them, was erected by Act of Parliament, is what I don’t remember to have seen any Authority to prove, nor do I remember ever to have seen, nor do I believe there can be shewn, any Act of Parliament by which either of the said Courts was erected; but if any such Act ever was, I presume, it is still in being, and may be shewn; and if any such can be shewn, I shou’d be of Opinion, this Honourable House wou’d not do amiss to Enact the same here; but as I know of no such Act, I must beg leave to take it for granted, that there is none; and if so, I think it must follow, they are by the common Custom and Laws in England, without an Act. And I shall beg leave to add, and am perswaded I shall be able to prove, by and by, That they are not only by the common Custom and Laws of England, without an Act, but are Fundamental Courts, and incident to the Constitution of England; and if so, surely (if the Laws of England extend here, and we are under the same Constitution with that of England) what is by Law in England, must be by Law here; and the Courts which have their Originals from, and are by that Law, are Fundamental Courts, and incident to that Constitution, must by the same Law and Constitution extend here. To say, that the Laws of England extend here, and yet, that the Courts, which are by that Law, and by which the Laws are to be administred, do not, is, in the main, denying the Laws of England to Extend: For how can the Laws be put in Execution, or administred without Courts? To say, that we have a Right, and deny that we have the Means or Remedy to come at, or obtain that Right, is certainly Denying the Right; for, Want of Right and Want of Remedy, are Termini Convertibiles,1 and the same thing. To say, that the Laws and Constitution of England extend here, and deny that the Courts (which are by and part of those Laws and that Constitution) do extend, is to say, that the Whole does, but part of that Whole does not extend. And I wou’d fain know, what sort of Constitution must that be, that has No Courts to administer Laws to the People: The Constitution of England is with Courts, and shall we say, that That Constitution extends here, but without Courts? It is one part of the Privilege of an English-man, to have his Property determined by such Courts as are Fundamental Courts, and are by the Law, without Act of Parliament; but if those Courts do not extend, that Privilege he can’t have here.

Edition: current; Page: [816]

I have heard it said, That the People here, have a Right to have those Courts established by Act of Assembly. What sort of a Right that is, I am at a Loss to know; If without an Act, they have no Right to the Courts, until an Act be passed into a Law, the People have no Right at all to them; and then, in the mean Time, or all this Time that there has been no Act of Assembly, how cou’d the Laws of England be said to extend here, without Courts to put the Laws in Force? How can any Man say, he is secure in his Privileges of an English-man, if the Courts which by the Laws of England are to secure the Subject in those Privileges, do not extend? Suppose an Act was passed to establish these Courts, they wou’d not be the same Courts that are by the Laws of England; for those in England, are by the Law, without an Act, and the Courts here, wou’d be by Act, and not by the Law.

Again, suppose an Act shou’d pass this House for the Establishment of these Courts, it must be on a Supposition that the Courts were not on a legal Establishment before; and suppose the Council, or the Governor shou’d be of an Opinion, the Courts were well established, and wou’d therefore not pass the Act, here wou’d be the Opinion of this honourable House, That the Courts were not legally established, and yet there are no other Courts in the Colony to administer those Laws that are said to extend, nor to secure the Subjects in the Enjoyment of those Privileges to which they have a Right.

Or, suppose the Governor and Council shou’d pass such an Act, and it shou’d be rejected at Home, Upon what a precarious and uncertain Footing the Laws and Privileges of the People of this Colony wou’d then be, I must refer to this honourable House to consider.

It has been objected against the Supreme Court here in this Colony, That it has neither Custom, Immemorial, nor Act of Assembly to warrant it, but the Courts at Home have Immemorial Custom, and therefore this Court here can’t be on the same Footing with those in England.

This Objection is now made only against the Supreme Court, but if it be allowed a good Argument in this Instance, I conceive it will in the End prove one of the most Destructive Doctrines to the Liberties and Privileges of the People of this Colony, that cou’d be advanced, and will equally serve as an Argument to prove, That the People here are not entitled to the Laws, Liberties or Constitution of England, and then it may well be said to prove too much, which (in Argument) is always said and allowed to prove nothing at all: For first, as to the Common Law of England, it is excellently well described by Sir John Davis in the Preface to his Reports, which was taken Notice of by Edition: current; Page: [817] Mr. Smith last Friday, and allowed by him to be a very good Description of it. I shall therefore beg Leave to read a few Paragraphs thereof, which are in these Words, viz.

The Common Law of England is nothing else but the Common Custom of the Realm, and a Custom which hath obtained the Force of a Law, is always said to be Jus non Scriptum;2 for it cannot be made or created, either by Charter, or by Parliament, which are Acts reduced to writing, and are always Matter of Record, but being only Matter of Fact, and consisting in Use and Practice; it can be recorded and registred no where but in the Memory of the People.

For a Custom taketh Beginning, and groweth to Perfection in this Manner: When a reasonable Act once done is found to be good and beneficial to the People, and agreeable to their Nature and Disposition, then do they use it, and practise it again, and again, and so by often Iteration and Multiplication of the Act, it becometh a Custom, and being continued, without Interruption, time out of Mind, it obtaineth the Force of a Law.

And this Customary Law is the most perfect, and most excellent, and without Comparison, the best to make and preserve a Common-wealth; for the written Laws, which are made either by the Edicts of Princes, or by Council of Estate, are imposed upon the Subject before any Tryal or Probation made, Whether the same be fit and agreeable to the Nature and Disposition of the People, or whether they will breed any Inconvenience or no? But a Custom doth never become a Law to bind the People, until it hath been tryed and approved Time out of Mind, during all which Time, there did thereby arise no Inconvenience, for if it had been found inconvenient at any Time, it had been used no longer, but had been interrupted, and consequently it had lost the Virtue and Force of a Law.

Therefore as the Law of Nature, which the School-men call Jus Commune,3 and which is also Jus non Scriptum, being written only in the Heart of Man, is better than all the written Laws in the World, to make Men honest and happy in this Life, if they wou’d observe the Rules thereof; so the customary Law of England, which we do likewise call Jus Commune, as coming nearest to the Law of Nature, which is the Root Edition: current; Page: [818] and Touchstone of all good Laws, and which is also Jus non Scriptum, and written only in the Memory of Man (for every Custom, tho’ it took Beginning beyond the Memory of any living Man, yet it is continued and preserved in the Memory of Men living) doth far excel our written Laws, namely, our Statutes or Acts of Parliament; which is manifest in this, that when our Parliaments have altered or changed any fundamental Points of the common Law, those Alterations have been found by Experience to be so inconvenient for the Common-wealth, as that the common Law hath, in Effect, been restored again, in the same Points, by other Acts of Parliament, in succeeding Ages.

By this Mr. Speaker, it may be observed, that the Custom of the Realm or common Law, is that which has been tryed and approved Time out of Mind, and that it doth far excel Acts of Parliament, and that when the Parliaments have altered, or changed any fundamental Points of the common Law, those Alterations have been found by Experience, to be inconvenient to the Common-wealth. Now it can’t be well denyed, (tho’ least it shou’d, I shall hereafter shew) That the four fundamental Courts of Chancery, Kings Bench, Common-Pleas, and Exchequer, have been Time out of Mind, and are of original Jurisdiction, and by the Law.

But the Objection against them here is, That tho’ they have been Time out of Mind in England, they have not been Time out of Mind here; and it is impossible they shou’d be, because this Country has not been long enough setled. And will not the same Argument hold against the common Law it self, viz. That tho’ the common Law has been (Time out of Mind) in England, yet it has not been Time out of Mind here; So that the same Argument now used, in Opposition to the Courts here, will equally serve in Opposition to the common Law it self.

Again, 2dly, As to the Liberties and Privileges of the People of England, they are entitled to those Liberties and Privileges, by immemorial Custom used there. Now the People of New-York can’t say, they have their Liberties and Privileges by immemorial Custom in New-York, because it has not been long enough setled; and therefore, if the Objection made against the Courts here, to wit (because they can’t be here by immemorial Custom) be good, the same Objection will serve against the Liberties and Privileges of the People here as English-men, because they can’t be here by immemorial Custom.

But 3dly, As to the Constitution of England, it is allowed to be Immemorial; we think our selves happy, and value our selves on being under the Edition: current; Page: [819] same Constitution here; but if the Objection against the Courts being by our Constitution and the Law here be allowed, to wit, That tho they are fundamental Courts, incident to the Constitution of England and as ancient as the Kingdom it self, and known to the Law at home yet as they are not by immemorial Custom here, they cannot be the same with those in England; the same Objection will certainly hold, that as the Constitution can’t be by immemorial Custom here, it can’t be the same Constitution, or upon the same Footing here, with that of England.

But 4thly, This Objection may be made use of, even against Assemblies, (which are our Parliaments here) The Parliaments at home are by the Constitution and Law of the Kingdom, Time out of Mind, and we say the same Constitution, and Law being here, we ought thereby to have the same here. But this Objection will say, there can be no Parliament, or Assembly here, time out of Mind, or by immemorial Custom, and therefore can’t be the same, or upon the Footing with the Parliament in England.

In short, if this Objection is to carry Weight against the Courts, for want of their being by immemorial Custom here, the same may be used against the Constitution, Laws, Assemblies, and all the Liberties and Privileges that English-men boast to have a Right to by immemorial Custom in England; for the Inhabitants of this Colony cannot claim any of them by immemorial Custom here.

As to what is said, That the Inhabitants have not a Right to those Courts here, for want of immemorial Usage, but have a Right to have them established by a Law, the same may, with equal Reason, be applied to the Laws, Constitutions, Liberties and Privileges of English-men for want of immemorial Usage here; we have not a Right to them, but have a Right to have them established by a Law; so with respect to Assemblies, for want of immemorial Usage here, we have not a Right to them, but have a Right to have them established by Act of Assembly, which I conceive carries in it a very great Absurdity.

But, Mr. Speaker, give me leave to speak my Sentiments freely. I humbly apprehend notwithstanding this Objection, That the Inhabitants of this Colony (being a Colony and Plantation of the Kingdom of England) are, & I hope, always will be not only entitl’d to the same Rights, Liberties, Privileges and Laws as are in our Mother Country, but also to the same Courts of Justice by which those Rights, Liberties and Privileges, are preserved and continued to the People of England, and by which those Laws Edition: current; Page: [820] are administred there, and what better Courts can be thought of or desired, or upon what better footing can the Courts be, by which the Rights, Liberties and Privileges of the People of England, are protected, and by which the Laws of England are administred, than those Courts which are Fundamental Courts, as ancient as the Kingdom it self, known to the Law, and have been Time out of Mind there? To put them upon any other footing, might be attended with more Inconveniencies than may at present be fore-seen. And as in Davis’s Preface, before mentioned, the Jus non scriptum, or unwritten Law, far excels the English written Law; for when the Parliaments have altered or changed Fundamental Points of the Common Law, those Alterations have been found by Experience to be inconvenient to the Common Wealth; and if it be dangerous in an English Parliament to make such alteration, I presume it will not be said to be less dangerous for This honourable House to do so.

And now, Mr. Speaker, as I have all along, in what I have said, taken it for granted, that the Courts of Chancery, Kings Bench, Common-Pleas and Exchequer, are Fundamental Courts, and are by the Common Custom and Law of England, it may be thought necessary to prove them to be so.

But before I proceed to the Proof thereof, it may not be amiss to take Notice of an Objection that has been made hereto, which seems at first mentioning, to have something in it, tho’ (when considered) will be found more a playing upon Words, than any force of Reasoning therein. What I mean, is, That as Courts of common Law and Courts of Equity are generally made use of in contra-distinction one to the other, it seems a Contradiction to say, that a Court of Equity is or can be by the common Law.

As to which, there are many other things in contra-distinction, to which the Terms Common Law are generally made use of, and yet are declared to be by the common Law, as for instance, when we speak of the common Law and Statute Law, the one is made use of in contra-distinction to the other, as in Lord Hale’s History of the common Law, pag. 54. speaking of the common Law, he says thus, Some have thought it to be so called, by way of contra-distinction to those other Laws that have obtained within the Kingdom, as first, by way of contra-distinction to the Statute Law. And yet in pag. 66. he makes Acts of Parliament one of the authoritative Constituents of the common Law; these are his words, And here it must not be wondred at, that I make Acts of Parliament one of the authoritative Constituents of the common Law, tho’ I had before contra-distinguished the one from the other.

Edition: current; Page: [821]

Another instance is, the common Law is used by way of contra-distinction to particular Customary Laws, as in the same Book, pag. 54, speaking of the Common Law, he says, Some have thought it to be so called, by way of contra-distinction to particular Customary Laws. And yet in p. 25. he says, The various and particular Customs of Cities, Towns and Mannors are thus far parts of the common Law, as they are applicable to those particular Places. And those particular Customs are always in themselves contrary to the common Law, as by the Custom of Gavel-kind, all the Issue Male, inherit equally; and by Burrough English, the Youngest Son shall inherit all; both which are contrary to the common Law; for by that, the Eldest Son shall inherit all; and many more might be mentioned.

Again, by a Tryal at the common Law, is generally understood to be a Tryal by Jury; but yet there are several other sorts of Tryals allowed by the common Law as 1 Inst. 74. where are these words, And there be divers other Tryals allowed by the Common Law, than by a Jury of Twelve Men, which you may read at large in the 9th Book of my Reports, so. 30, 31, &c. in the Case of the Abbot of Strata Marcella, which are as plainly set down there as they can be here.

And in Tryals per pais, Page 7. it is thus said, But because it is necessary to be known that there are many ways allowed by the common Law to try Matters of Fact, besides this by Jurys, I will here repeat some of them, and for this first, hear the Oracle, who tells you, That he has read of six Kinds of Certificates allowed for Tryals by the common Law, &c. Also, 9th Coke, 30. b. is in these Words; There are divers Manners of Tryals allowed by the Common Law, above the three mentioned in the Argument of this Case, (that is to say) of Matters in Fact by Jurors, of Matters in Law by the Justices; and of Matters of Record, by the Record it self. As in Treason, the Tryal of one who is a Peer of the Realm, that is, a Lord of the Parliament, shall be upon an Indictment of Treason or Felony, tryed by his Peers, without any Oath, but upon their Honours and Allegiances; but in appeal at the Suit of a Subject, they shall be tryed per probos & legales Homines Juratos4 10 E. 4 6. &c. Customs and Usages of every Court shall be tryed by the Judges of the same Court, if they be pleaded in the same Court. In Dower or Appeal brought of the Death of her Husband, or in an Assize brought by a Woman who was the Wife of B. if the Tenant or Defendant plead that the Husband is living, the Tryal shall not be by Jury, but Edition: current; Page: [822] by the Justices, upon Proofs made before them, for greater Expedition, &c. And many other sorts of Tryals that are called Tryals allowed by the common Law, may be seen in the said Book.

And there is a Difference between a Court of common Law, and a Court by the common Law: When we say, a Court of common Law, by that is understood, a Court which is contra-distinguished from a Court of Equity; but notwithstanding this, they may be both Courts by the common Law. And tho’ Tryals in Courts of Law, generally speaking, are by Juries, yet it will not follow from thence, but that Courts which have another Method of Tryals, are by the common Law. There is a plain Instance to this Purpose in Hales History of the common Law, 35 with respect to the Admiralty Court, which every one knows tryes Matters according to the Course of the Civil Law, as Chancery does; the Words of the Book are,

This Court is not bottom’d or founded upon the Authority of the civil Law, but hath both its Power and Jurisdiction by the Law, and Custom of the Realm, in such Matters as are proper for its Cognizance.

And Tryals in the Common Law Courts and Tryals in the Civil Law Courts, are as much made use of in Contra-distinction one to the other, as a Court of Law and a Court of Equity; yet there it is said, That that Court hath both its Power and Jurisdiction by the Law and Custom of the Realm.

Again, what the Common Law is in its usual and proper Acceptation, may be seen in Page 24. of the same Book, where among other Things, it is said, “To direct the Limits, Bounds and Extents of Courts, and their Jurisdictions.” And in page 25 it is said, That

the Common Law assumes divers Denominations, yet they are but Branches and Parts of it, like as the same Ocean, tho’ it many Times receives a different Name from the Province, Shire, Island or Country to which it is contiguous, yet these are but Parts of the same Ocean.

And indeed I take it, that these two Expressions when made use of in Contra-distinction one to the other, is only, or generally, to signify the two different Courts, or the different Methods of Practice or Proceedings in the two different Courts; but when we speak in general, of the common Custom of the Realm, we may well and truly say, That it is the very ground of both these Courts.

But to proceed, and shew, all these Courts are by the common Custom and Laws of England, a Book called Doctor and Student, in pages 22, 23. speaking Edition: current; Page: [823] of the Grounds of the Law of England, and of the Courts of Chancery, Kings Bench, Common Pleas and Exchequer, it says thus,

And tho’ in some Statutes is made mention sometimes of the said Courts; yet nevertheless, of the first Institution of the said Courts, and that such Courts shou’d be, there is no Statute nor Law written in the Laws of England; and so all the Ground and Beginning of the said Courts, depend upon the Custom of the Realm; the which Custom is of so high Authority, that the said Courts, ne their Authorities, may not be altered, ne their Names changed, without Parliament.

Also, by the Old Custom of the Realm, no Man shall be taken, imprisoned, disseized, nor otherwise destroyed, but he be put to answer by the Law of the Land: and this Custom is confirmed by the Statute of Magna Charta, Cap. 26.

Also, by the old Custom of the Realm, all Men, great and small, shall do and receive Justice in the Kings Courts; and this Custom is confirmed by the Stat. of Marl. cap. 1.

I cannot omit here taking Notice of an Observation this Book affords, speaking of the Grounds of the common Laws of England, it says, That all the Grounds and Beginning of the said Courts depend upon the Custom of the Realm, &c. And in the two very next Paragraphs, it gives an Account, That the Custom of the Realm guards every Man from being imprisoned, disseised, or destroyed, otherwise than by the Law, and also, that every Man shall do and receive Justice in the Kings Courts.

Now, if it be allowed, That the Common Laws of England extend here, as I suppose it will not be denyed, with respect to the two Paragraphs (last mentioned, as being by Immemorial Custom in England) I wou’d fain know, what Reason can be assigned, why the Common Law, with respect to the other Paragraph, just preceding them, which is thereby declared to be the Ground of these Courts (as being by Immemorial Custom also) shou’d not. And if the Extention of this Part, with respect to the Courts, be objected against, for want of Immemorial Custom here; Whether the want of Immemorial Custom here, with respect to the other two, will not be an Objection equally strong against their Extention, is what I shall submit.

Again, That all these Courts are so ancient, that no Man can tell which is most ancient, appears in Lord Cokes Preface to his 8 Rep. the Words of Edition: current; Page: [824] the Book, & And in Ann. 10. E. 4. Fo. 53. All the Judges of England did affirm, That the Chancery, Kings Bench, Common Pleas, and Exchequer be all the Kings Courts, and have been Time out of Memory of Man, so is no Man knoweth which of them is the most ancient.

The same is to be found in 2 Inst. 23. where it is said, It is resolved by all the Judges in the Exchequer Chamber, that all the Courts, viz. the Kings Bench, the Common Pleas, the Exchequer and the Chancery are the Kings Courts, and have been Time out of Memory, Isint que home ne poet seaver que est plus auncient (that is) so that a Man cannot know which is the most ancient.

But before I proceed further on this Head, I must beg leave here to take Notice, of a Distinction that has been endeavoured to be made, whereby to exclude the Court of Equity in the Chancery; it is said and owned, that the Chancery Court is a Fundamental Court, and by the Common Custom and Law of the Realm; but it is said, this must be meant of the Law fide, and not the Equity fide,5 in the Chancery Court. And to support this Distinction, some Books seem to give a Colour, where it is said, The time of Beginning of the Equity fide, is uncertain, because as some of them say, no Records or Memorials are to be found thereof, of ancient Times, and therefore some dated the Beginning to be in Henry the Fourth’s Time, some not before, or in Henry the Fifth’s Time; some have allowed them to be as far back as Richard the Second’s Time, and the farthest back that I have heard allowed, was to the Twentieth of Edward the Third’s Time.

As to which, it may be observed, what Reasons these Authors go upon, viz. That they could find no Records or Memorials of such Proceeding. But with Submission, it will not absolutely follow, because they could not find any Records, or Memorials of such Proceedings, therefore there were none such.

It may be questioned (and not without some Reason) whether there were Records or Memorials kept of those Things, in those ancient Times, so regularly as they afterwards were; for I remember upon such a Method of arguing as this, (to wit) That no Records or Memorials thereof appearing, or to be found, it was asserted, that the Commons of England were not an essential Part of the Parliament, before the Forty ninth Year of Henry Third.

Edition: current; Page: [825]

And this by several great and learned Authors, which however, since is fully obviated. Yet by this it appears, that even with respect to their Parliamentary Affairs, in those ancient Times, they either kept no Memorials at all of their Proceedings, or else kept them so carlesly, or Losely, that they were left to after Ages; and if they were so negligent in their Parliamentary Affairs, it may well be that they were not more careful of their Proceedings in Equity.

But with humble Submission to those Authors, who date the beginning of the Courts of Equity in Henry the Fifth’s time, some in Henry the Fourth’s time, some in Richard the Second’s time; but the farthest back that, it seems, could be found, is in the twentieth year of Edward the Third; I’ll beg leave, with the little Search that I have made, to shew one still ancienter, and it is in 1st Rolls Abridgment 372 Letter E. the Book is part in Latin, and part in French, but the English thereof is thus, Rolls of Parliament 14 Ed. 3 Number 33. an Ordinance was made touching the Priory of Westshirbone, &c. and if any Thing be done against this Ordinance, that then the Chancellor of England shall have Power to hear the Complaint by Bill, and thereupon to proceed in the same Manner as is usually accustomed to do daily in a Writt of Supaena in Chancery.

And tho’ this Ordinance is but six years older than the 20th of Edward the Third, yet by the Ordinance it self, it appears that the Chancellor was then usually accustomed to proceed in a Writ of Subpoena in Chancery; which words, usually accustomed, evidently shew, such Usage and Custom was before.

But to put this Matter still more out of Doubt, and more fully to obviate these Objections, I shall beg leave to produce some other Authorities, which I presume, will fully evince, that the Courts of Chancery (Equity as well as Law fide) and the Kings Bench, Common Pleas, and Exchequer, are all Fundamental Courts, as antient as the Kingdom it self, and are known to, and are by the common Law.

And the first that I shall shew, is Cokes 4th Institutes 213, by which it appears to have been Resolved, that the Chancery Jurisdiction, in Matters of Equity, hath had continual Allowance, and that Court which hath had continual Allowance, surely cannot be said to be contrary to the Law. The words of the Book are,—It was Resolved that the King cannot make any Commission to hear and determine any Matter of Equity, but Matters of Equity ought to be determined in the Court of Chancery, whose Jurisdiction therein hath had continual allowance; and so it was Resolved in Perot’s case.

Edition: current; Page: [826]

1st Lilly’s Abridgment 367. proves they are Fundamental Courts, the words of the Book are, The Courts of Kings Bench, Chancery, common Pleas and Exchequer are Fundamental Courts, and in pleading of them, you do not begin with a Prescription or Grant, as in inferior Courts.

Hoberts Reports 63 I take to be an Authority full in Point; the case was, Martin against Marshall and Key; the words of the Book, so far as relate to the present Purpose, are thus,

But in the Handling of this Case, it was argued by Serjeant Hitcham, that the substance of the Plea was faulty; for he argued, That a Court of Equity could not lye in Grant, much less in Prescription, being a Jurisdiction to be derived from the Crown; and so he said, it was Resolved by Popham, Anderson, Gawdy and Walmsley, That the King could not grant to the New Queen, to hold a Court of Equity, and that also it could not be by Prescription; for the King cannot grant any thing in derogation of the common Law; but tenere Placita,6 according to the course of the Law, may be granted and prescribed; and the Chancery in Chester and Durham, are incidents to a County Palatine, which had Jura Regalia;7 and London and the Cinque Ports have Acts of Parliament for them. And indeed, I hold this to be a greater Question, and of great consideration to be admitted, that a Court of Equity should stand upon Grant or Prescription only. For though it be true that the Court of Chancery hath always been, and so in Effect, stands by a Prescription, yet that is not well reasoned; for in pleading, any thing done in Chancery, you do not begin your Plea with a Prescription, as in these inferiour pretended Courts, but you plead a Thing done in the Court of Chancery, as you do all Things done in the Courts of Common Pleas, or Kings Bench; whereof the Reason is, That they are fundamental Courts, as ancient as the Kingdom it self, and known to the Law; for all Kingdoms in their Constitution, are with the Power of Justice, both according to the Rule of Law and Equity, both which being in the King as Sovereign, were after setled in several Courts, as the Light being first made by God, was after setled in the great Bodies of the Sun and Moon. But that part of Equity being opposite to regular Law, and in a manner an Arbitrary Disposition, is still administred by the King himself, and his Chancellor, in his Name, ab initio,8 as a special Trust committed to the King, and no’ by him to be committed to any other.

Edition: current; Page: [827]

In that case, its observable, as it speaks particularly of the Court of Equity, it gives the reason why a Court of Equity should be as much a Fundamental Court, and as incident to the Constitution, as a Court of common Law (viz.) That all Kingdoms in their Constitution, are with the Power of Justice, both according to the Rule of Law and Equity; and indeed (as I apprehend) to suppose any Constitution without, would be to suppose it imperfect, and without full and compleat Power to do Justice, which ought not to be supposed of the Constitution of England.

Nay, in that case it is said, that in Chester and Durham (which are Counties Palatine within England) having Jura Regalia, Chancery Courts are Incidents to them; as if he had said, Without such Courts they could not administer full and compleat Justice; And can it be supposed with the least Probability, that these Counties Palatine in England should have Courts of Equity incident to them, and yet that the Kingdom of England should not have them? since it is evident, beyond all contradiction, that there are many instances, wherein, according to the strict Rules of the common Law, there can be no Relief.

But to proceed, I shall beg leave to offer a Book, entitled, Discourse on the Rolls, 1, 2, to the same purpose. The words of the Book are thus,

The Laws are the Birth-Right and Inheritance of all the Subjects of England, who are therefore nearly concerned in the Jurisdiction of Courts of Justice, especially of the four great Courts at Westminster, the main channel thro’ which the Benefit of those Laws is convey’d to them.

In the Reign of Edward the Fourth, it was declared by all the Judges of England, That all these Courts were before Time of Memory, so as no Man knoweth which of them was the most antient.

In Doctor and Student, a Book of good esteem in the Law, it is laid down, That there is no Statute nor written Law, that such Courts should be, but the ground and beginning of these Courts depend upon the Custom of the Realm, which Custom is of so high Authority, that neither those Courts, nor their Authorities, may be altered, without Parliament.

A wise and learned Judge of the common Law, my Lord chief Justice Hobart, speaking of the Courts of Chancery, Kings Bench and common Pleas, says, “They are Fundamental Courts, as Antient as the Kingdom it self, and known to the Law; for all Kingdoms in their Constitution are Edition: current; Page: [828] with the Tower of Justice, both according to the Rule of Law and Equity, or in other words, the Jurisdictions of those Courts are a Fundamental part of the Constitution.”

The next that I shall shew is 12th Cokes Reports 113. the Earl of Derby’s Case: the Book says,

In the Chancery, between Sir John Egerton, Plantiff, and William Earl of Derby, Chamberlain of Chester, and others, Defendants, for the Trust and Interest of a Farm called Budshaw in the County of Chester, It was resolved by the Lord Chancellor, the Chief-Justice of England, the Master of the Rolls, Doderidge and Winch, Justices, that the King cannot Grant a Commission to determine any Matter of Equity, but it ought to be determined in the Court of Chancery,—which hath had Jurisdiction in such Case Time out of Mind, and had always such Allowance by the Law; but such Commissions or New Courts of Equity shall never have such Allowance, but have been resolved to be against Law, as it was agreed in Potts Case.

Here the Resolution of the Chancellor, the Chief Justice, the Master of the Rolls, and two Judges, was, That the Court of Chancery hath had Jurisdiction in Equity, Time out of Mind, and had always such Allowance by the Law. And this, I think, fully answers the Distinction of Law and Equity fide, and the Objection, that a Court of Equity can’t be by the Law. And as to those Petitions in and Acts of Parliament, which say, that the Chancery Courts had medled with Things which should have been tryed in a Court of Common Law, and this is called and said to be in subversion of the Common Law, as I before shewed, the common Law circumscribes and limits the Jurisdictions of all its Courts, and whenever one of them exceeds its Bounds, it may well be said to be in Subversion of that common Law that gave that Court its Being; but it can no way follow from thence, that the Court has not its Being by or from the common Law.

Another Authority, which I shall beg leave to offer on this Head, is Godbolts Reports 262. the Mayor of York’s Case, the Words of the Book are, In an Action of false Imprisonment brought, it was holden by the whole Court, that no Man can claim to hold a Court of Equity, viz. of Chancery by Prescription, because every Prescription is against common Right, and a Chancery Court is founded upon common Right, and is by the common Law.

Edition: current; Page: [829]

By which it is observable, the Question was, if a Court of Equity, (to wit) a Court of Chancery, could be held by Prescription, and there it is said to have been held, by the whole Court, that a Chancery Court is founded upon common Right, and is by the common Law; which I conceive, fully obviates the Objections before mentioned.

And now I think, I have fully made out what I proposed to do, (to wit) That the Courts of Chancery, Kings Bench, common Pleas and Exchequer are Fundamental Courts, and are by the common Custom and Law of England; and if the common Customs and Laws of England, by which they are Courts there, do extend here, and we are under the same Constitution here, with that of England, I conceive those Courts must be Courts by the same Law here.

But I have heard, it has been said, by some, That the appointing Judges by Commissions, to hear and determine Matters according to the course of the Kings Bench, common Pleas, and Exchequer, is (in Effect) erecting those Courts here by those commissions. The which I must desire leave to deny.

For, first, It is by Virtue of the Kings commission the Assemblies are called, and make Acts here. Now it may with the same Reason be said, that by those Commissions to call and hold Assemblies, the Assemblies are, in Effect, Erected; and if that be true, then they cannot have greater Power than the KING, who gave it them; for a derived Power cannot be greater than that from whence it is derived; and if the King cannot erect Courts, by his Commission, how can he by commission impower others, so to do, Nemo dat quod non habet, no body can give a Power he has not; and this would prove, that even the Assemblies have not Power to erect Courts.

Again, it is said, The Judges could not sit, nor those Courts be held without these Commissions had been granted.

I answer, Neither could the Assemblies sit, or be held without the Kings commission for that Purpose; so that take this which way you will, the same Objection it affords against the Courts, it will also afford against Assemblies. But, Mr. Speaker, I’ll beg leave to say,

That this cannot be an Objection against either the Assembly or the Courts; for tho’ true it is, the Assemblies sit and are called together by Virtue of the Kings commission, and without the Kings Commission for that Purpose, they could not sit, yet Assemblies, or their Power or Authority, are not thereby erected, nor is their Power or Authority from that Edition: current; Page: [830] Commission, but from the common Custom and Laws of England, claimed as an English-mans Birth Right, and as having been such by Immemorial Custom in England; and tho’ the People of New-York cannot claim this by Immemorial custom here, yet as being part of the Dominions of England, they are intitled to the like Powers and Authorities here, that their fellow Subjects have, or are entitled to, in their Mother Country, by Immemorial Custom.

The same Argument & same way of reasoning will hold with respect to the Courts; for tho’ it is true, the Judges sit and hold Courts by Virtue of the Kings Commissions, and without them they could not sit, yet the Courts, or their Power, Authority or Jurisdiction, are not thereby Erected, nor is their Power or Authority from that Commission, but from the common Custom and Laws of England, by Immemorial Custom there. And tho’ these Courts here, we cannot say, are by Immemorial Custom in this Colony, yet we are entitled to them, in the same manner that we are to Assemblies. And agreeable to this, I’ll beg leave to read some Authorities. Woods Institutes 466. treating of the Courts of Justice or Jurisdiction of the Courts in England, and among the rest, speaking of the Kings Bench and the Justices of that Court, he says, in these Words, The Justices of this Court have no Commission or other Means to hold Pleas, but their Power is original and ordinary; for when the King hath appointed them, they have their Jurisdiction from the Law, both in criminal and civil Causes.

To the same Purpose is Cokes fourth Institutes 74. by a Note of my Lord Coke in the Margin of the Book, in these Words, Designatio Justiciariorum est a Rege Jurisdictio vero Ordinaria a Lege; the Appointment of the Justices is from the King, but their ordinary Jurisdiction is from the Law.

To the same Purpose is Jacobs’s Law Dictionary, title Kings Bench, speaking of the Justices of the Kings Bench, the Book says, And their Power is original and ordinary, when the King hath appointed them, they have their Jurisdiction from the Law. All which, I think also, fully shews, that the Power or Jurisdiction is by or from the Law.

I own these last Instances given, are with respect to the Court and Judges of the Kings Bench, but the Reason thereof will go to all other Courts, that are of original Jurisdiction; and those Books that treat of the Power and Jurisdiction of Courts in general, commonly mention the Kings Bench first, as one of the Courts that is of original Jurisdiction, and then mention Edition: current; Page: [831] several of the Powers, that such Courts, and the Judges thereof, are vested with, and how they are vested therewith; and then, when they come to treat of the Common Pleas and Exchequer, they do not (and indeed it would be needless) to repeat the same Things over again, under the several Titles; but it is sufficient to shew, that they are Courts of original Jurisdiction; and then it must follow necessarily, that they are vested with their Power and Jurisdiction in the same Manner.

And now, Mr. Speaker, from what I have said upon this second Particular, under the second general Head, I conceive, it plainly appears, That by the Laws and Customs of England, the Courts of Justice there, are Not by Act of Parliament, but by the Law; and if so, and the Laws and Customs of England extend here, it should seem to me, that if the Laws and Customs of England that give to the People (and are the Grounds of) their Courts there, the same Laws extending here, should likewise give us, and be the Grounds of our Courts here.

I now proceed to the third Particular, which is thus. After the Petitions say, That the Courts ought by the Laws of England, to be established by Act of Assembly (then come these Words) especially the Court of Equity, lately erected in the Supreme Court. By this they own that this Court of Equity ought, more especially, to be established by Act of Assembly; and if so, there seems, in the Petitioners Opinion, to be a necessity for this Court, only they would have it established by Act. But if it be a Court by the Custom and Laws of England, then there can be no need of an Act for it; and that it is so, I think is abundantly proved, by what I have said before; for the Exchequer Court is one of the Four Courts that are of Original Jurisdiction. But as some Particulars have been objected against this Court, I must desire Leave to consider them.

First, In the Petition, this Court is said to be lately erected, how long ago, is meant by this Word lately, I do not know; neither is it set forth in this Petition, how it was erected. I have heard it said by some, It was erected by Ordinance in this present Governours time. But this is a Mistake. In clearing up of which, it may not be amiss, to take Notice of what Things have occur’d to me, relating to this Court of Exchequer.

I find by the Minutes of the Supreme Court of this Colony, that in the Year 1702. a Court of Exchequer was held before William Attwood, Esq; then Chief Justice, and Abraham De Peyster and Robert Walter Esqrs; Justices, Edition: current; Page: [832] in which some Proceedings were had on the Plea fide,9 as by a Certificate under the Clerk’s Hand, in these Words, viz.

At a Court of Exchequer held for the Province of New-York the 22d of April, 1702.

PRESENT { William Attwood Esq;
Abraham De Peyster Esq;
Robert Walter.

Dom. Rex10 vers. Wright and French. Second Scire facias11 returned Nihil.12 The Sollicitor General moves for Judgment upon the Scire facias.

Ordered, Judgment, unless the Defendant plead an issuable Plea, sitting the Court on Saturday next.

At a Court of Exchequer held the 25th of April, 1702.

PRESENT { William Attwood Esq;
Abraham De Peyster Esq;
Robert Walter Esq;

Dom. Rex vers. Wright and French. Bickley pro Defendant pleads, Conditions performed.

At a Court of Exchequer held the 28th of April, 1702.

PRESENT { William Attwood Esq;
Abraham De Peyster Esq;
Robert Walters

Dom. Rex vers. Wright and French. The Attorney Demurrs to the Plea.

Ordered, The Plea be mended.

Edition: current; Page: [833]

At a Court of Exchequer held the 18th of May, 1702.

PRESENT { William Attwood Esq;
Abraham De Peyster, Esqrs }
Robert Walters

Dom. Rex, vers. Wright and French.

Ordered, That the Costs to be paid, on amendment of the Plea, be Taxed by the Court.

The Attorney General not being ready, the Court adjourned to Ten of the Clock To-morrow Morning.

At a Court of Exchequer held the 19th of May, 1702.

PRESENT { William Attwood Esq;
Abraham De Peyster Esqrs }
Robert Walters

Dom Rex, vers. Wright and French.

Mr. Attorney General being called upon to proceed in this Cause, acquainted the Court, That he had receiv’d Orders, upon a Petition of the Defendant French, under the Hand of his Excellency the Governour, to stay Proceedings till further Order.

New-York, Secretaries Office, June the 11th 1734.

The afore-going are true Copies from the Entries in the Minute Book thereof remaining in the Secretaries Office,

Ex per13 Fred. Morris, D. Secry.

I do not know certainly that there was any business done from that time (tho’ there might have been) till December, 1729 when I find by the Minutes of the same Supreme Court, a Rule was moved for and granted, in a Cause, the King against Heath, a Copy of which I have here also certified in the words following, viz.

Edition: current; Page: [834]

At a Supreme Court of Judicature held for the Province of New-York, on the 2d day of December, 1729.

Present the Honourable Lewis Morris, Esq; Chief Justice.

The King vers. Samuel Heath. Whereas it is alledged, That Samuel Heath, late Deputy Weigh-Master of his Majesty’s Weigh-house, has lately absconded, without rendring an Account or Payment of the Money received by him, for his Majesty’s use, for weighing at his Majesty’s Beam; and that its the King’s Prerogative to have Process out of the Exchequer, against the Body, Lands and Goods of his Debtor or Accomptant, and to seize them till Account and Payment.

It was moved by James Alexander, in behalf of Cadwallader Colden, principal Weigh-Master, That this Court being vested with the Powers of the Court of Exchequer, wou’d give leave to take the Process thereof to compel, the said Samuel Heath, by his Body, Lands and Goods, to render the account, and make the payment aforesaid.

It is Ordered accordingly.

The above is a true Copy of the Original Entry, Ex per Fred. Morris, D. Secry.

By this, Mr. Speaker, Four thing appear. First, That it was then alledged by Mr. Alexander, That it was the Kings Prerogative to have Process out of his Exchequer, against the Body, Lands and Goods of his Debtor or Accomptant.

2dly, That he then affirmed, That the Supreme Court was vested with the Powers of the Court of Exchequer.

3dly, He moved the Court thereon, for leave to take the Process thereof to Compell, Heath by his Body, Lands and Goods, &c. to render an account. And

4thly, That the Motion was granted by the Court.

I have heard it said, That this Writ, thus moved for and granted, is a Writ that does not issue out of the Chancery fide14 of the Exchequer.

Edition: current; Page: [835]

But truly, I conceive (and I think I have two Books of unquestionable Authority, to prove) that it does. Crompton’s Jurisdiction of Courts 106: a. b. the Book is in French, but the English thereof is thus,

If any Accomptant to the King, or if any Money, or Goods, Chattles, personal, of the King, come to the Hands of any Subject by Matter of Record, or by Matter in Fact, the Lands of such Subject are chargeable for the same, and lyable to the Seizure of the King, in whose Hands soever they afterwards come, be it by Descent or Purchase, or otherwise; for the King might have seized the same in the Hands of the Debtor, and by the same Reason, in the Hands of any who comes in under him; for no Time shall prejudice the King; and the Exchequer hath a Chancery and Seal, and the Writs usual in the Chancery, in the Exchequer, for Seizure of Lands, in such case, are more antient than the Register, or the Treatise De Prerogativa Regis.15

The next Book is Plowdens Commentaries 321.a. which Book is also in French, but the English is thus;

And hereupon Gerard put the case, which was debated in the Exchequer, in the Time of the now Queen, in which he himself argued, which was thus, Sir W. Candish, who was Treasurer of the Chamber to King Henry 8th, and to King Edward 6th and to Queen Mary, was indebted to the said King Edward and to Queen Mary, and being so indebted, purchased divers Lands, and aliened them, and of part, he took an Estate to himself and his Wife, and Part remained in the Hands of others, and he died without rendring an Account; and if these Lands could be seized in the Hands of the now Queen, and be retained by the Course of the Common Law, until an Account was made by Candish, or not, was the Debate. For Candish was not obliged to the King in any Recognizance or Obligation, but the Matter of the Seizure rested entirely upon the Common Law, where it was well debated at the Bar, by the Council for the Queen, and by the Council for Sir W. Sentlow, Captain of the Guard, and his Wife, lately the Wife of Sir W. Candish, upon Demurrer in Law, upon the Point. And after full Argument of the same, all the Barons of the Exchequer unanimously agreed, That the Seizure for the Queen; of the said Land, was lawful. For many Writs and Processes, in a Manner Edition: current; Page: [836] infinite, were in the Court of Exchequer, for that Purpose, whereof great Multitudes were alledged and shewn to the Court; by which it appeared, that if any one is Accomptant to the King, or if any Money or Goods or Chattles, Personal, of the King, come to the Hands of any Subject, by Matter of Record, or by Matter in fact, that the Land of such Subject is chargable for the same, and liable to the Seizure of the King, in whose Hands soever it afterwards comes, be it by Descent or Purchase, or otherways; for the King might have seized in the Hands of Sir W. Candish, and by the same Reason in the Hands of any Person who comes in under him; for no Time shall prejudice the King; and the Exchequer hath a Chancery, and a Seal; and the Writs usual in the Chancery, in the Exchequer, for seizing Lands, in such Case, are more ancient than the Register, or the Treatise Prerogativa Regis.

Other Proceedings there have been in this Court of Exchequer, in several Causes, as appear by the Minutes of the Supreme Court. A Copy whereof I have also certified in these Words,

At a Supreme Court of Judicature held for the Province of New-York, at the City Hall of the City of New-York, on Tuesday, March 21st 1731–2.

PRESENT { The Hon. Lewis Morris, Esq; Chief Justice.
The Hon. James De Lancey, Esq; second Justice,
The Hon. Frederick Philipse, Esq; third Justice.
16.[“In the Exchequer.”]
17.[Per curiam: “By order of the Court.”]
The King in Scaccario,16 on the Equity fide, Bill, vers. } Bill read and filed, and on Motion of Mr. Attorney, for Process to issue, the Court ordered, That Process do issue returnable the first Day of next Term. per Cur.17
Scott and York for His Majesty’s Quit-Rents.
Edition: current; Page: [837]

At a Supreme Court of Judicature, held for the Province of New-York, at the City of New-York, Octo. 16th 1732.

PRESENT { The hon. Lewis Morris, Esq; Chief Justice.
The hon. James De Lancey, Esq; second Justice.
The hon. Frederick Philipse, Esq; third Justice.
John Briscowe, vers. In Scaccario,
The Bill filed by Mr. Warrel, and
George Monthomerie. Process Ordered. per Cur.

Octo. 17th 1732. Present, as above.

Elizabeth Anthony, vers. } In Scaccario,
John Lemountes,
Archibald Campbell,
and Mary his Wife. The Bill read, and filed by Mr. Smith, and Process ordered, per Cur.
The KING vers. } Bill filed Dec. 5th 1732.
Van Dam, Esq; Mr. Bradley, Attorney.
Riggs, vers. } Bill filed, Dec. 20th, 1732.
Home, Admr. Mr. Gilbert, Attorney.
Eliz. Baxter, vers. } Bill filed, June 5th, 1733.
Jam. Baxter. Mr. Horsmanden.
Keziah Glover, vers. } Bill filed, June 7th, 1733.
Jam. Baxter. Mr. Horsmanden, Attorney.
Riggs, Esq; vers. } Bill filed, August 7th, 1733.
Homes, Admr. Mr. Smith, Attorney.
Montr. Esq;
Edition: current; Page: [838]

At the adjourned Sittings of his Majesty’s Court of Exchequer, held for the Province of New-York, at the City-Hall of the City of New-York, on Thursday, June 7th, 1733.

Present, The Honourable Frederick Philipse, Esq; 3d Justice.

Sydenham, al. Stuyvesant, vers. Ger. Stuyvesant. On reading Petition and Affidavit of the Plaintiff, it is Ordered, That she be admitted to sue in forma Pauperis,18 and that James Alexander, and William Smith, Esqrs be her Council. Per Cur.

June the 11th, 1734. the aforegoing contains true Copies of the Entries made in the aforegoing Causes, and the Time when the several Bills therein mentioned were filed, Fred. Morris.

And this last Petition and Affidavit were brought into Court, and agreed upon by Mess. James Alexander and William Smith.

So that this Court was not erected by Ordinance in this Governour’s Time; for it was held, and Business was done therein, before he was Governour. And as it is allowed, that by Virtue of an Ordinance, it could not be erected, so tho’ any Ordinance should be published, with any such Words, as erecting such a Court, if the Court had no other, it would have no good Foundation. And suppose the King should issue his Ordinance in England, and there should be Words therein, empowering the Exchequer Court in England, to hear, try and determine Causes in Law and Equity, I presume, this (tho’ it would not give a legal Power to that Court) yet it would not take away the legal Power the Court had before. And the Design of the Ordinances that I have seen, must have been principally to appoint the Times of sitting of the Court, that the People might know certainly when to attend, as appears by the Recitals thereof.

Others say, this Court was erected by the Judges Commissions.

Answer, This I have shewn before, cannot be; and besides, if this should be so, then every granting of new Commissions to the Judges, might be said a new erecting of the Courts.

Wherefore it must be owing to some other Power. And since the Petitions have not set it forth, I’ll pray leave to say, That I take it to be a Court by Edition: current; Page: [839] the common Customs, Laws and Constitution of England, as I think is before fully shewn.

But to this there has been an Objection, That the Equity fide of the Court of Exchequer, is not upon the same Footing with the Law fide, but is by Act of Parliament.

Now, Mr. Speaker, those that make this Objection, seem tacitly to own, that the Law fide of the Exchequer is by Law. But, I conceive, if one be, the other is of Course so, I need only to observe on the Authorities I before advanced, where this Court of Exchequer is mentioned, and shewn to be a Court of Original Jurisdiction, that there is no Distinction made between the Law and Equity fide.

And all the Pretence for this, is, or seems to me to be founded on an Expression of my Lord Coke’s in his 4 Institutes 119. which runs thus, Some are of Opinion, That a Court of Equity was holden in the Exchequer Chamber, before the Statute of 33 H. 8. and then it must be a Court of Equity by Prescription; for we find no former Act of Parliament that doth create and establish any such Court.

Here my Lord Coke says only That some are of Opinion, that a Court of Equity was holden in the Exchequer Chamber, before the Statute of the Thirty third of Henry the Eighth.

Those that make this Objection, infer, that my Lord Coke knew others held otherwise, or those some must mean some few who held contrary to the received Opinion; and this I must own, is the full Force of what I have heard in support of this Distinction. As to which, I’ll pray leave to give several Answers;

First, This is a bare Supposal, and not one Word in the Book to shew it was really so.

Secondly, This is such a Conclusion as will not necessarily follow; for if he heard only some Men Deliver their Opinion upon that Point, he might well say, as he does, that some Men are of that Opinion, and know not what any other Persons Opinion was.

Thirdly, The contrary Conclusion must be supposed by the way of writing that this Author commends, in his Commentarys on Littleton, he says, when Littleton puts a Case that has been disputed, he mentions both the Opinions of the differing Parties. But here it does not appear, any body was of a contrary Opinion.

Fourthly, That he himself was of the Opinion, that the Exchequer Chancery was not erected by that Act.

Edition: current; Page: [840]

He gives afterwards, in the same Page, some undeniable Instances, which prove, that the Exchequer Chancery was in being long before. One is, That the Writs usual in the Chancery of the Exchequer, are more ancient than the Treatise De prerogativa Regis. Now this Treatise was in the seventeenth Year of Edward the Second.

The 2d Instance is a Petition by the Commons, in the second Year of Henry the Fourth.

The 3d is another Petition, in the third Year of Henry the Fifth, both mentioning the Processes of the Exchequer Chancery, as then used.

So that my Lord Coke seems to me, by these, plainly to shew, his own Opinion was, That the Exchequer Chancery, was immemorial, and not erected by that Act.

But farther, the two Authorities of Crompton 106. and Plowden 321. before shewn, both prove that the Writs usual in the Chancery of the Exchequer are more ancient than the Register, and the Register is a Book called, A most ancient Book in the Law, as Cokes 1st Institutes 73. b. The Words of the Book are, Register is the Name of a most ancient Book, and of great Authority in Law, containing all the original Writts of the Common Law.

First, Lilly’s Abridgment, 374. speaking of Courts, and their Jurisdiction, says thus, The Court of Exchequer is a mixed Court, and doth consist of Law and Equity; The Plea fide, is for Matters of Law, and the Exchequer Chamber, for Matters of Equity. On the Plea fide they proceed in Latin, and in the Exchequer Chamber, by English Bill, Answer, &c. as in Chancery.

In Coke’s 4 Inst. 109. 110. speaking of a Paragraph of this Statute, relating to Trials of Issues in the Court of Exchequer, it is said, This Act as to that Point is but in Affirmance of the common Law.

Which shews, the Court must be by common Law. The Case in the Book, is in these Words, viz. In the Exchequer, at the Suit of the King, in an Information of Intrusion of Lands, wherein Issue is joyned, which may be tryed by the Country; yet where the King hath a direct Record or Records, for the Manifestation of his Title, the King’s Attorney may pray, that the Trial may be by Records; whereof you may read a notable Case, Mich. 27 and 28 Eliz. in the Exchequer, where the Case was, That in an Information of Intrusion into certain Lands, &c. against Savill; the Issue was, whether certain Lands belonged to a House, or no. And upon a Trial by Edition: current; Page: [841] Record, Judgment was given against Savill. Afterwards Savill, the Defendant, dyed, and his Son and Heir brought a Writ of Error in the Exchequer Chamber, where it was holden, that this kind of Trial by Records, was before the Stat. of 33 H. 8. Cap. 39. The Words whereof be, That all and every Tryal and Tryals, of all manner of Suits, Bills, Plaints, Informations, &c. and Issues in the Court of Exchequer, shall be made and tryed by due Examination of Witnesses, Writings, Proofs, or by such otherways or Means as by the Court of Exchequer shall be thought expedient, and that every such Judgment, Decree or Decrees, shall be good, perfect, and in full Strength, Force and Effect in Law, to all Intents, Constructions and Purposes; and yet, notwithstanding, the generality of these Words, if a Judgment be given upon a Tryal by Record, a Writ of Error doth lie thereupon; because, as to that Point, this Act is but in Affirmance of the common Law.

But if none of these Authorities were, I would only refer to this Act, which they say, erects this Equity fide of the Court of Exchequer, and desire to have it pointed out, which Paragraph it is that erects it. I have read the Act, and find nothing like the erecting the Chancery side of the Exchequer; but wherever it mentions the Exchequer Court, it mentions it as a Court in being before, and when the Act was made; not one Word of new erecting the Equity fide of the Exchequer. Indeed, there are thereby some Advantages given to the King, but one Branch thereof is greatly for the Benefit of the Subject; which appears in Cokes 4 Inst. 118. in these Words (speaking of the Exchequer Court)

By the Statute of 33. H. 8 Cap. 39, they have full Power and Authority to discharge, cancel and make Void, all and singular Recognizances and Bonds made to the King for Payment of any Debt or Sum of Money, or for Performance of Conditions, &c. upon shewing the Acquittance, &c. or any Proof made of Payment and Performance, also to cancel and make void, by their Discretion, all Recognizances made for any Appearance, or other Contempt. And if any Person, of whom any such Debt, or Duty is demanded, allege, plead, declare, or shew in the said Court, sufficient Cause and Matter in Law, Reason and good Conscience, in Barr or discharge of the said Debt or Duty, and the same Matter sufficiently prove in the said Court; then the said Court shall have Power and Authority to judge and allow the said Proof, and clearly acquit and discharge such Person and Persons, &c.

And this is all I can find in that Statute that could give any Colour to say the Equity fide of the Exchequer is thereby erected.

And yet no such Thing as erecting a Court, therein appears; but, that any Person may plead Matter of Equity in his Discharge, in the same Court, where he is sued. So that, by this he might plead Matters of Equity in the Law fide, which he could not do before.

Edition: current; Page: [842]

So that, I apprehend that Objection of the Exchequer Chancery’s being erected by that Act, has no Weight.

Another Objection against this Court, is, That the Barons of the Exchequer in England, cannot hold (or determine Causes in) the Exchequer Chancery.

This, I conceive, is a Mistake, if the following Books are to be believed. Jacobs Law Dictionary, Title Exchequer, 2 & 3 Columns, speaking of the Court of Exchequer, says thus.

The Court of Equity is holden in the Exchequer Chamber, Coram Thesaurario Cancellario & Baronibus,19 but usually before the Barons only, the Lord Chief Baron being the chief Judge, to hear and determine all Causes in Law or Equity.

Wood in his Institutes 469. also treating of the Court of Exchequer, has these Words,

The Lord chief Baron, is the chief Judge of this Court assisted, with three other Barons, who are the Sovereign Auditors of England, and hear and determine all Causes in Law or Equity.

Also, a Book which treats of the Practice of the Courts in England, called, The compleat Clerk in Court, in 149. speaking of the Exchequer, Court, says thus.

The Court of Exchequer at Westminster, consists of two Parts, the upper Part, and the lower Part; the former whereof hath a judicial Power of hearing and determining all Causes belonging to the Kings Treasure, and the latter is called the Receipt of the Exchequer. The judicial part of the Exchequer is a Court both of Law and of Equity; but the equitable Part hath much the greater Business, which is holden in the Exchequer Chamber before the Treasurer Chancellor and Barons, but generally by the Barons only, who are the Judges of the Court. The Proceedings here are by English Bill, according to the Practice of the high Court of Chancery.

In another Book of Practice, called, The Practising Attorney, or The Lawyers Office, printed in 1726. in Pages 316, 317. treating of the Court of Equity in the Exchequer, has these Words.

Edition: current; Page: [843]

The Court of Equity, which has much the greatest Business, is holden in the Exchequer Chamber before the Treasurer, Chancellor and Barons of the Exchequer; but usually, by the Barons only. The Lord chief Baron being the chief Judge to hear and determine all Causes in Law or Equity. The Proceedings here are by Bill, agreeable to the Practice of the high Court of Chancery.

A Book called Lex Constitutionis,20 in Page 40. speaking of the Exchequer, says,

And in another Branch of this Court, all Actions, both real and personal, are handled by Bill, &c. as a Court of Equity: A Lord chief Baron, and three other Barons sit in this Court as Judges.

The last Book that I shall offer on this Point, is a Book, called, Orders of the high Court of Chancery, printed in 1698. wherein are also the Rules and Orders of the Exchequer, whereby it appears that the Rules and Orders of the Exchequer Chancery in England, are made by the Barons of the Exchequer. The Words of the Book in the second Part, Page 1. are thus,

Orders and Rules of Proceedings in the Office of his Majesty’s Remembrancer of this Court of Exchequer at Westminster, which the Right honourable the Lord chief Baron, and the other Barons have thought fit at present, to ordain and publish, for the better and more speedy carrying on the Business in that Office.

And then follow several Rules and Orders, relating particularly to the Business of the Exchequer Chancery, needless here to insert.

It is objected also, That the whole Jurisdiction which in England is distributed into three Courts, is here lodged in one.

I must allow, it is often much more easy to raise Objections than to answer them; however, as to this I answer,

This is a new Colony, and is yet (as it were) but in its Infancy, we cannot be thought to have every thing in its full and compleat Perfection as they have at home, but we endeavour to imitate and come as near to them as we can.

England was once in its Infancy, and had not Things in so regular a Manner as now they have; but to show, that in this we agree with what was in Edition: current; Page: [844] England formerly, we find in Second Hawkins’s Pleas of the Crown, Chapter 3d, Section the First, That the Jurisdiction of these Three Courts were in one, as now we have it. The Words of the Book are, The whole Jurisdiction which is now distributed among the several Courts of Westminster Hall, seems in the first Reigns after the Conquest to have been lodged in one Court, commonly called, The King’s Court, wherein Justice is said to have been Administred, sometimes by the King himself in Person, and sometimes by the High Justicier, who was an Officer of very great Authority.

And in Jacob’s Law Dictionary, Title Justice, speaking of the Chief Justice of England, and what he was anciently, it is said, That ‘he had the Power alone, which afterwards was distributed to three other great Magistrates, that is, he had the Power of the Chief Justice of the Common-Pleas, of the Chief Baron of the Exchequer and Master of the Court of Wards. I find also by a Book, called The Court Register, and Statesman’s Remembrancer, printed in 1733. in Page 143. that Persons have been Chief Barons and Justices of the Common-Pleas at one Time. The Words of the Book are, Moreover it appears, that some of the Justices of this Court were also Chief Barons of the Exchequer at the same time. And in 155. of the same Book, it is said, That the chief Justice of England in Henry the 2d’s Time sate in the Exchequer.

Besides, one Court here is enough to dispatch what Business is in this Colony; And where is the Need of three, when one will do?

When Causes and Suitors increase, then it may be proper to divide them into several Branches. And this seems to be the true Reason of severing them in England, as in State Regr. 142. speaking of the Common-Pleas, has these Words, The severing this Court from the Exchequer, was, no Doubt occasioned by the Increase of Suitors and Causes thereto.

Another Fault found with this Court, is, That there is no Check upon the Court, and that it is inconsistent to have the same Persons Judges of Law and Equity.

In proof of Objection, a Prohibition was taken Notice of, this in 4 Inst. 114. and the same is taken Notice of in 118. speaking of the Law and Equity Courts of Exchequer, where it is said, That If in either Court they hold any Plea, which is not for the Profit or Benefit of the King, or which toucheth not the King, there lyeth a Prohibition, which, as is aforesaid, appeareth in the Register; for all are said Communia Placita,21 which are not Placita Coronae;22 and this, it was said, shews a Prohibition will go from the Kings-Bench. As to which, 1st.

Edition: current; Page: [845]

That Prohibition is taken out of the Register of original Writs, 187. b. & I never understood that any original Writs ever issued out of the Kings-Bench, but always out of the Chancery; so that this Authority does not shew the Kings-Bench is a Check upon the Exchequer. And in State Regr. 139. it is said, The Kings-Bench has Power to examine and correct Errors in Fact and in Law in Courts of Record (the Court of Exchequer excepted.)

2dly, There was not, nor cou’d there be any Check when these three Courts were in one in England; and I have shewn before they were so.

3dly, As to the Inconsistency of the same Judges being to judge of Law and Equity, the same may be said against the Barons of the Exchequer at home, and yet they have been so Time out of Mind.

Again, it is said, This is a new Court here. As to which, tho’ the Practice in this Court may be new here, it is not so in England: This is a new Country, and every thing cannot be done or begun at once, but each must have a Beginning in its Turn; and tho’ the Practice may have begun but lately, yet as it is a Court by Immemorial Custom, and the Law at home, the Power thereof hath equally existed with the other Parts of the Supreme Court; and if this cannot be by Law here, neither can any Part thereof be, for the same thing that will make one void, must make the other void also.

I come now to the fourth and last Particular, under my second general Head, viz. That the Petitioners take this Court to be a Grievance, and destructive to the People’s Liberties, as constituted:

As to which, I find no Instance in particular charg’d herein, it is all in general, and to a general Charge, a general Answer might serve.

However, Mr. Speaker, I’ll beg leave to say something hereto. I observe the Names of many very worthy Persons signed to these Petitions, for whom I have a great Value and Esteem, and I am very far from, (nay, it would be unreasonable in me in the least to blame or find fault with them) for being of another Opinion than what I am; for every man ought to judge, nay, must and can’t help judging by his own Reason, and I hope I may expect the same, from those worthy Persons, whose Opinions I can’t joyn with; for as every one of them, so every other Man ought to be left at Liberty to guide himself by his own Reason.

And altho’ I believe, I know as much of the Business and Practice of this Court, as a great many of those who signed the Petition, I do declare, I do not know, take or believe it, to be a Grievance or destructive to the Peoples Liberties, tho’ I know a great deal of Pains has been taken to expose and redicule it.

Edition: current; Page: [846]

But to return, Mr. Speaker, I think I have shewn before, that this Court is upon the same Footing here, as the same Court, by the common Custom and Law of England, is in England; and in the Methods of Practice here, we have endeavoured to imitate, as near as we can, the Exchequer Court in England, and I must own, it looks something strange to hear such a Court called a Grievance and destructive to the Peoples Liberties here.

Was there any other, or new Court, not warranted by the Laws of England, endeavoured or pretended to be set up and exercised here, every Man ought, and I would as much and as strongly oppose it, as any Man in the Colony, according to my Abilities.

But really, Mr. Speaker, the bare calling (without some way proving) it so will, I presume, not be thought sufficient Grounds for this honourable House to declare it so.

I had almost forgot one Objection that was made, viz. That the Judges are made only during Pleasure here, which renders them too much dependant, whereas in England they are by Act of Parliament during good Behaviour.

And tho’ this is not the Subject Matter of this Petition, yet as it is an Argument used, to shew that there is a greater Necessity of having a Check upon the Courts here, than in England, I’ll pray leave to say something to it.

And first, I do own, that there is such an Act at home, as is mentioned, and I also own, and always was of Opinion, that Judges should be made as Independant as possible, and that the more independant they are, the better it would be for the Liberties, Privileges and Properties of the People; and I must add, I could heartily wish there was a Law here, as in England, to make them during good Behaviour.

But, 2dly Mr. Speaker, I am afraid the Method now proposed to make the Judges more independant, may be introductive of much greater Mischiefs, than what are thereby intended to be prevented. For what is proposed, is no less (in effect) than to abolish and declare Void the four fundamental and original Courts, that are incident to the Constitution, under which we think our selves happy to be, that are as ancient as the Kingdom it self, to which we belong; Courts, which the Customs and Laws of the Realm (in the Dominions belonging to which we live) are the very ground of; Courts, in which, time out of Mind, the Laws of England have been administred; Courts, whereby all the Liberties and Privileges of the People of England, from time immemorial, have been secured to them. These are proposed to be (in effect) abolished, and new invented Courts, under a Pretence of being Edition: current; Page: [847] greater Checks, one upon the other, than those fundamental Courts, are proposed to be established in their Room; and what the Consequence of this would be, no Man living can, I believe, pretend to say. And as to this, I shall beg leave once more to read one Paragraph out of Davis’s Preface, page 4. which is in these Words,

Therefore as the Law of Nature, which the Schoolmen call Jus Commune, and which is also jus non Scriptum, being written only in the Heart of Man, is better than all the written Laws in the World, to make Men honest and happy in this Life, if they would observe the Rules thereof; so the customary Law of England, which we do likewise call Jus Commune, as coming nearest to the Law of Nature, which is the Root and Touch-stone of all good Laws, and which is also jus non Scriptum, and written only in the Memory of Man (for every Custom, tho’ it took Beginning beyond the Memory of any living Man, yet it is continued and preserved in the Memory of Men living) doth far excel our written Laws, namely, our Statutes or Acts of Parliament, which is manifest in this, that when our Parliaments have altered or changed any fundamental Points of the common Law, those Alterations have been found by Experience, to be so inconvenient for the common Wealth, as that the common Law hath, in effect, been restored again in the same Points, by other Acts of Parliament, in succeeding Ages.

And now, if it be so, that even when the Parliament of England, that wise Body, has altered or changed any fundamental Points of the common Law, those Alterations have been found, by Experience, to be inconvenient.

What Inconveniencies therefore, may we not, with Reason, expect to follow, from having the four fundamental Courts altered and changed by the Assembly here.

But 3dly, Mr. Speaker, if this be intended, in order to put a Check upon the Judges, because they are not during Good Behaviour, I would humbly beg leave to offer to this honourable House, what I conceive would answer that End, and in which it would, in my Opinion, be more likely to succeed, than in this, to wit, to pass such an Act as they have in England, to make the Judges during good Behaviour here.

If to this it be objected, That such an Act might not pass at home.

I answer; if his Majesty should be willing to assent to an Act, to put a Check upon the Judges, equal to that of their being, during good Behaviour, Edition: current; Page: [848] he would do it as soon in an Act for that Purpose; and if he should not be willing so to do, how can it be expected that he will give his Assent to an Act, which in effect is to be a Check equal to it?

Again, it is more reasonable to expect such an Act, as I now propose, will meet with the Assent at home, because there is an Act of Parliament at home for that Purpose, and which this honourable House may make Use of, as their President.

I have now done with the Second general Head, and shall therefore proceed briefly to consider the third Head. And that is the Prayer of the Petitions; and as the Petitioners express some grounds for their Hopes of having the Prayer granted. I’ll beg leave,

  • First, To take Notice of those Grounds for the Prayer. And
  • Secondly, The Prayer it self.

And first, As to the Grounds, they are, because the Members of this honourable House had some time since, Resolved, that the erecting Courts of Equity without Consent in General-Assembly was illegal, &c. And these and several other Resolutions were read last Friday.

In answer to which, I would first beg leave to read a Report of a Committee, and a Representation of some of the Members of the Council of this Colony, upon those Resolutions, both which are entred in the Minutes of Council, and are added hereto, by way of Appendix, being thought too long to insert in this Place.

And, Mr. Speaker, tho’ I must own there are many things in these Representations, which do not immediately relate to the present Purpose, yet as those Things that do, are so intermixed and blended together with the others, I could not separate them, and was therefore obliged to have the whole read. I only offer these, to shew, first, what Opinion the Members of the Council had of those Resolutions, and what Dangerous Tendencys such Resolutions might be of, and how tender and cautious the Assembly ought to be, on such Occasions.

And 2dly, In what Manner they say the Court of Chancery was erected.

But to return to the Resolutions of the Assembly, aforesaid, what can be inferr’d from thence, but that the Members of the Assembly thought the Court of Chancery, as then used and exercised, was not legal, that is certainly plainly to be inferr’d from those Resolutions; and a great many other Persons, and I among the rest, then thought, and still think so too, Edition: current; Page: [849] that the Footing it was then upon was not right; and that there was not any Court of Chancery established here, wherein his then Excellency could judge or make any Decree: That Court is said in the Representation of the Council, in the Year 1727 to have been erected by the Governour himself, with the Advice of the Council, pursuant to the Powers in his Commission, that is, the Governour (having Power by Virtue of his Commission to erect Courts, with Advice of his Council) created himself Chancellor, which I humbly conceive he could not do; but it will not follow from thence, that no Court of Chancery was by the Law, by which, when a Chancellor or a proper Judge is appointed, he may use and exercise the Power of, nor will it follow from thence, that the Supreme Court here, or the Equity side of the Exchequer, is not by Law here.

I do own to you, Mr. Speaker, I always thought and still do think, and do believe, on a proper Occasion, will be able to shew, that it was not only very improper and inconvenient to the People of this Province, to have the Governour their Chancellor, but very inconvenient to the Governours themselves.

But as this does not effect the Subject Matter of these Petitions, I shall not now enter into the Particulars thereof. However, Mr. Speaker, I cannot here omit taking Notice of one Thing, and that is this, It was really the Consideration of the several and many Inconveniencies the People of this Province were under, in having a Chancery Court only in the Hands of a Governour, by the many tedious Delays and great Expences of Chancery Suits, by the Governour’s being often out of Town, and when in Town, few of them cared to be troubled with the Business thereof, with many other Particulars, needless here to be repeated. Such Considerations as these, put several of the Lawyers (among whom I own my self to have been one) upon thinking how to avoid those Inconveniences; and this Matter was often talked of, in the times of Governour Burnet, and Governour Montgomerie, and it was proposed often to begin Chancery Business in the Equity fide of the Exchequer. But none of us cared to begin, while a Governour was here, least we might be thought to decline his Jurisdiction; however, upon the Death of Governour Montgomerie, it was then thought a convenient Time to begin, and at some Meetings which we had with the Judges, in Town, that Matter being proposed, it was thought by us all present, that as it would be of Advantage and Benefit to the People, who we were fully persuaded would chuse rather to have their Properties determin’d by Sworn Judges, whose Edition: current; Page: [850] Business would require them to give due Attendance, and whose Estates and Families are in the Country, than otherwise. So it was thought it could not be at all disagreeable to the People.

And as there is a Necessity for a Court of Equity, in order to have Relief, or a Remedy, where none can be had at Law; I believe, Mr. Speaker, there is hardly a Man in this Colony, if he were asked the Question, but would say, he thinks the same. After this, we were so careful to desire a Sight of the Judges Commissions, that we might see and know whether they could hold such a Court; and the Commissions being brought, and considered by us all, we all that were present, agreed unanimously, that the Judges were well impowered by their Commissions to hold the Equity fide of the Exchequer, and accordingly before this Governour’s Arrival, to wit, in March Term 1731: a Bill was filed, and on Motion, Process was ordered by the Court, as by the Minutes of the Supreme Court, I have before shew’d, and ever since Business has been carried on in that Court, there have been several Bills filed in this Court by the other Practitioners; but I assure you, Mr. Speaker, I have not yet filed one; but I must inform You; that I was, and am concerned in a Cause which is still depending there, at the Suit of the King against Mr. Rip Van Dam: I was employed as an Assistant Council only for the King, and Mr. William Smith was concerned for the Defendant, and in that Suit, there was put in what was called a Plea to the Jurisdiction, and in the Argument of that Plea, I did argue, and give my Opinion, That the Judges were well impowered, and Mr. Smith argued and gave his Opinion to the contrary, That they were not impowered.

And if it should be objected, That we may be byassed by our former Opinions, and as being still concerned in the same Cause.

I answer, in that respect we are upon an equal Footing, and I am far from desiring, nor am I so vain as to suppose that my Opinion should have any Weight farther than the Reasons offer’d, for support thereof, will warrant it. But I’ll beg leave to observe, that I and several others gave the same Opinion long before I was concerned in that Cause, nay, long before it was or could be known, that any such Suit was to have been brought; and when neither I, nor any of the rest, that I know of, had or could have any Matter, Reason or Cause to biass our Opinions.

But to return, I conceive, tho’ the Assembly had resolved, That erecting Courts of Equity without Consent in General-Assembly, was illegal, which might well be for the Governour’s using or exercising the Power of that Court without Edition: current; Page: [851] sufficient Authority, that that can be no sufficient Grounds to hope that a Court legally held, should be abolished.

And now I proceed to the Prayer it self, which is, That this honourable House would settle the Courts of Justice by an Act, in such Manner as may be most conducive to preserve the Liberties of the Subjects here from any Encroachments.

Now as to this of passing any Act, to preserve the Liberties of the Subjects from any Encroachments, I should be far from being against. But, Mr. Speaker, under Colour of this to have a Law passed to abolish or declare Illegal the Supream Court, or any part of it (for if part is, the whole must be Void) might, as I conceive, be Introductive of many Inconveniences more than may be thought of, will appear from the Observations on Davis’s Preface, as before, and that it would be Inconvenient in some Instances, I shall beg Leave to name some few.

1st, It would render Void, or at least Disputable, all the Acts and Judgments of the Supream-Court, for near these forty Years past.

2dly, It would affect the Causes now Depending in that Court, to the prejudice of the Parties thereto.

But beyond and above all, Mr. Speaker, the denying of these fundamental and original Courts, by the Common Laws of England, to be by the Laws of England here, under the pretence, that these Courts are not, nor can be said to be by Immemorial Custom in this Province, if this Denial should appear by an Act of the Legislature, it may (in my humble Opinion) be attended with the most dangerous and fatal Consequences to the Rights, Liberties and Privileges of the good People of this Colony, that could well be invented, in this, that as there have been some Persons, in some Reigns who have been Strenuous in Endeavouring to stretch the Prerogative Power in Subversion of the Privileges of the People, and as there have been such heretofore, we may suppose (and therefore cannot too securely Guard against them) there may be others (who hereafter may endeavour at the like) then supposing all or any of the English Laws, Liberties or Priviledges were or should be attacked here, and denyed to extend or belong to the People of this Colony, or it should be said, we had not a right thereto, how could we entitle our selves to them, but by saying that as the Inhabitants in England, our Mother Country, are entitled to them by Immemorial Custom there, we here, as being part of the Dominions of England, are therefore entituled to the same; would not those prerogative Men be furnished by such an Act Edition: current; Page: [852] with a strong Argument against us, and be able to say, tho’ the People of England have those Liberties and Priviledges in England, they have them there, by Immemorial Custom, but your Colony has not been a Colony long enough, to give you a pretence to say, you have the same by Immemorial Custom here; Therefore you have not the same Right; and out of our own Mouths, by an Act of our own making, they will judge us, and they’ll tell us, we have declared we are not entituled to the fundamental and Original Courts, which are as much by the Common Laws of England, as any of our Liberties and Priviledges (we can claim) are, and that only for want of their being by Immemorial Custom here.

Therefore, if you are not entituled to part (for that Reason only) for the same Reason, you are not entituled to the rest; for you must be entituled to all or none.

This, I am afraid, would be pressed home upon us by those prerogative Men, in too strong and cogent a Manner for us to get over.

And then (if this Argument could or should prevail) it may justly be feared, this Country may again return to a Wilderness. But on the other hand, if the good and wholsome Laws and Customs of England, the Liberties and Privileges of English-men, and the Good old original Courts, by which those Laws are administred, and those inestimable Liberties and Privileges are secured to us; if those, I say, are allowed to be upon the Footing I have proposed (and I think they cannot be so safe upon any other) then it cannot in the least be doubted, but that every Man will rest and sit down under his own Vine, and under his own Figg-tree, and peacably and quietly enjoy the Fruits of his own Labour and Industry.

And now, Mr. Speaker, I have in the best Manner that I was capable of, performed what this honourable House desired of me, in giving truly my Sentiments upon the Subject Matter of these Petitions.

Mr. Smith, in delivering his Sentiments last Friday, did in so handsome and elegant a Manner, fully prove that the People of this Colony are undoubtedly entitled to all the Customs, Laws, Liberties and Privileges of Englishmen, that it was needless for me to attempt the Proof thereof, which otherwise I should have done. But I do entirely agree with him, in all that he said on that Head, and I hope I have proved that the fundamental Courts by the Laws of England, are as much part of those Liberties and Privileges, and as much by the Customs and Laws of England, as any other of their Liberties and Privileges are, and of Consequence, the People here Edition: current; Page: [853] as much entitled to those fundamental Courts, as to their other Privileges, and have endeavoured to answer all the Objections that I had heard, were or thought could be made against our being entituled to the same Courts. And upon the whole thereof, as there has been much talk’d and said about the Liberties and Priviledges of the People I would beg leave only to propound this one Question, Who is he that Argues most in favour of the Liberties of the People? He who affirms and proves, that they are entituled to those Liberties and Priviledges, Laws and Customs of England, and the Good Old Original Courts, that are by those Laws, without an Act? Or, he who argues and says, we are not entitled to them, until an Act is passed to establish them? I suppose the Answer would be given, without Hesitation, in favour of the former.

But, Mr. Speaker, if it yet should be said, that there is a Necessity for making Acts relating to those Courts, I would beg Leave to offer to this honourable House, the Imitation of such Laws, relating to those Courts, as the wise Legislature of England have thought fit to make. I presume, it will not be said, there can be a better Pattern offered for the Assembly to go by. And it is not to be supposed, but that the Parliament at home has made all the Regulations therein that can be thought necessary; whereas going into new Schemes and new Inventions, may be attended with many Inconveniencies, which when they happen, may not be so easily remedied.

And I beg leave to conclude, by praying that God Almighty may Guide, Direct and Influence this honourable House, in their Debates and Consultations upon this Momentous Affair, and that the End thereof may be for the good of all the Inhabitants of this Colony.

Appendix.

At a Council held at Fort-George, in New-York, November 25, 1727.

Present, His Excellency William Burnet, Esq; &c.

Capt. Walter, } { Mr. Alexander,
Mr. Van Dam, Mr. Lewis Morris, jun.
Mr. Harison, Mr. Abraham Van Horne,
Dr. Colden, Mr. Kennedy.
Edition: current; Page: [854]

His Excellency was pleased to declare the General-Assembly of this Province dissolved, with the unanimous Consent and Approbation of this Board, on Account of the following Resolves made by them, viz.

Die Sabbat.23 25 November, 1727.

Col. Hicks, from the Committee of Grievances, reported, That as well by the Complaints of several People, as by the general Cry of His Majesty’s Subjects inhabiting this Colony, they find that the Court of Chancery as lately assumed to be set up here, renders the Liberties and Properties of the said Subjects extreamly precarious: And that by the violent Measures taken in and allowed by it, some have been ruined, others obliged to abandon the Colony, and many restrained in it, either by Imprisonment, or by excessive Bail exacted from them not to depart, even when no manner of Suits are depending against them. And therefore are of Opinion, That the extraordinary Proceedings of that Court, and the exorbitant Fees and Charges, countenanced to be exacted by the Officers and Practitioners thereof, are the greatest Grievance and Oppression this Colony hath ever felt: And, That for removing the fatal Consequences thereof, they had come to several Resolutions. Which being read, were approved of by the House, and are as follows, viz.

Resolved, That the erecting or exercising in this Colony a Court of Equity or Chancery, (however it may be termed) without Consent in General-Assembly, is unwarrantable, and contrary to the Laws of England, and a manifest Oppression and Grievance to the Subjects, and of pernicious Consequence to their Liberty and Properties.

Resolved, That this House will, at their next Meeting, prepare and pass an Act, to declare and adjudge all Orders, Ordinances, Devises and Proceedings of the Court, so assumed to be erected and exercised, as above-mentioned, to be illegal, null and void, as by Law and of Right they ought to be.

Resolved, That this House, at the same Time, will take into Consideration, Whether it be necessary to establish a Court of Equity or Chancery in this Colony, in whom the Jurisdiction thereof ought to be vested, and how far the Powers of it shall be prescribed and limitted.

Examined and compared with the } G. Ludlow, Cl.
Journal of the General-Assembly.
Edition: current; Page: [855]

Which Resolves this Board looks upon as unwarrantable and highly injurious to his Majesty’s Prerogative, to the Recovery of his just Rights in this Province, and to the Liberties and Properties of the Subject, who wou’d, if the said Resolutions were of any Force, be thereby deprived of all Remedy in Equity, which they are entitled to by the Laws and fundamental Constitution of Great-Britain.

Ordered, That this Minute be published and printed, and dispersed throughout this Province; and that the Gentlemen of this Board, or any five of them, be a Committee to make their Observations on the said Resolves, and that they report their Opinion thereon to this Board.

At a Council held at Fort-George, in New-York, November 27, 1727.

PRESENT, His Excellency William Burnet, Esq; &c.

Capt. Walter, Dr. Colden, Mr. Alexander, Mr. Morris, jun. Mr. Kennedy.

Resolved, That the Committee appointed to make their Observations on the Resolves of the General-Assembly, the last Sessions, relating to the Court of Chancery of this Province, have Power to send for Persons and Papers, and to examine them upon Oath, if Occasion requires it.

Post Merid. At a Council held at Fort-George, in New-York, December 5, 1727.

PRESENT, His Excellency William Burnet, Esq; &c.

Capt. Walter, Dr. Colden, Mr. Alexander, Mr. Morris, jun. Mr. Kennedy.

The Report of the Gentlemen of the Committee, to whom was referred the Resolves of the General-Assembly, relating to the Court of Chancery in this Province, was read, & unanimously agreed to by this Board.

Ordered, That the said Report be entered in the Minutes of this Day, which Report is accordingly entered, and is as follows, viz.

In Obedience to your Excellency’s Commands in Council, referring to us the Resolves of the late Assembly of the 25th of November last, concerning the Court of Chancery in this Province to make our Observations thereon and to enquire what Complaints, Grievances or other Motives occasioned them; we humbly Report,

That we in the first Place enquired, By what Authority the Court of Chancery, as it now stands, was established: And find, That on the 29th of Edition: current; Page: [856] September, in the Year 1711, the then Governour of this Province did erect and open the Court of Chancery, by and with the Advice and Consent of the Council, pursuant to the Powers given to the said Governour by the following Clause in his Commission, under the great Seal of Great-Britain, viz.

We do by these Presents give and grant unto You full Power and Authority, with the Advice and Consent of our said Council, to erect, constitute and establish such and so many Courts of Judicature and publick Justice, within Our Province and Territories under Your Government, as You and They shall think fit, for the hearing and determining all Causes, as well Civil as Criminal, according to Law and Equity.

The opening of which Court was accordingly made known to the Subject by publick Proclamation, issued by and with the Advice and Consent aforesaid.

The said Court of Chancery continued, as then established, till Your Excellency’s Arrival in this Province. And your Excellency being directed by his late Majesty’s Instructions to you, Not to erect any Court or Office of Judicature, not before erected or established; nor to dissolve any Court or Office, already erected or established, without his Majesty’s special Order. We are of Opinion, That the Court of Chancery was very remarkably confirmed and continued by the said Instruction, more especially when we had fully considered what follows.

That the Assembly of this Province, soon after the erecting of the Court of Chancery, as aforesaid, did, on the 24th of November, in the Year 1711, make the following Resolve, viz. That the erecting a Court of Equity, without Consent in General-Assembly, is contrary to Law, without Precedent, and of dangerous Consequence to the Liberty and Property of the Subject. Which Resolve was communicated by the Council of this Province, to the Lords Commissioners for Trade and Plantation; who in their Answer, dated at White-hall, June the 12th, 1712, declared, That The erecting a Court of Equity, by Advice and Consent of the Council, is pursuant to the Powers granted to you by her Majesty, under the great Seal of Great-Britain: And therefore the Resolve of the General-Assembly of the 24th of November, 1711, is very presumptuous, and a Diminution of her Majesty’s Royal Prerogative; for that her Majesty has an undoubted Right of appointing such and so many Courts of Judicature, in the Plantations, as She shall think necessary for the Distribution of Justice. A Copy of which Letter was delivered by the Governour to the Assembly, to be put upon their Journal.

Edition: current; Page: [857]

The Court of Chancery from that Time, continued in the quiet Exercise of its Authority, to the Day these last Resolves were made. We therefore think it highly presumptuous, that the Assembly should, after all this, take upon them to declare, as they do by their Resolves now before us, That the erecting and exercising in this Colony a Court of Equity or Chancery (however it may be termed) without Consent in General-Assembly, is unwarrantable and contrary to the Laws of England, and a manifest Oppression and Grievance to the Subjects, and of pernicious Consequence to their Liberties and Properties.

By this we do not so much apprehend that the Court of Chancery is struck at, or those who constituted it, in pursuance of the Power given them, as the Power and Authority of the King himself in this Province: For it will be a sufficient Justification to those who erected and exercised the Court of Chancery, That the same was erected pursuant to the Power given by the Crown, That it was directed to be continued by the late King, and that the People of this Province have, for so many Years, remained satisfied therein.

We are fully convinced, That a Court of Equity is necessarily supposed in our Constitution, and that Justice cannot be obtained in all Cases without the Aid of such a Court, and therefore that the King has undoubtedly a Right of erecting the same in the Plantations.

That the King’s Authority is directly struck at, appears further by their second Resolve, viz. That this House will at their next Meeting prepare and pass an Act, to declare and adjudge all Orders, Ordinances, Devises and Proceedings of the Court, so assumed to be erected and exercised, as above-mentioned, to be illegal, null and void, as by Law and of Right they ought to be. The Form of all former Resolves has been to prepare and bring in (seldom to pass) a Bill, which supposes the Concurrence of the other Branches of the Legislature before it become an Act. And considering the strong Terms in which these Resolves are conceived, we cannot think that the Word Act has been unwarily made use of, but with Design to show to the People, what Influence the Assembly doth assume over the other Branches of the Legislature here, as well as to alienate the Peoples Affections from His Majesty’s Government, by making them believe, that illegal and arbitrary Powers were and are given to the Governours of this Province. Ignorance of former Proceedings, and of the Resentment shown by the Lords Commissioners, cannot be pleaded, because a Copy of their Lordships Letter is now among the Papers of that House, and their Speaker, who brought in these Resolves, ready prepared in his own Hand Writing, was of the Council, and present, Edition: current; Page: [858] when the Court of Chancery was erected, and was well acquainted with all the above-mentioned Proceedings.

We have the more Reason to suspect, that the Design of these Resolves was not to redress Grievances; because if it had, Care would have been taken to represent their Grievances to the King’s Majesty, or at least to the Governour and Council of this Province, who have sufficient Power to redress them, and whose Concurrence is likewise absolutely necessary, if an Act was to be passed in the common Form: Neither had they any Reason to suspect, that your Excellency would be averse to any useful Regulation of the Court of Chancery; for your Excellency has often publickly declared, That the Duty of the Chancery was too heavy, & that you wished some. Method might be found to ease you of that Burthen.

And it appears further to us, by this last mentioned Resolve, That their ardent Zeal to encrease their own Authority and Power has made them entirely forget the Rights and Safety of their fellow Subject: For as they have never examined into the Justice of any one of the Decrees in Chancery upon which the Right and Quiet of many of the Subjects of this Province depend, it would be very unjust to set them all aside, whether right or wrong, and would necessarily create great Confusion. And this would be true, though it were granted, That the Court of Chancery here had been erected without sufficient Authority.

It is not necessary to make any Remark on the last Resolve of the Assembly, but that it serves to confirm the Opinion we have of the Spirit with which these Resolves were made.

The Attempts which too evidently appear to be made on His Majesty’s Authority, and on the Constitution of this Government, and the tender Concern that is always due to the Characters of all Officers of Justice, and likewise the Apprehension we had, that some Grievances might have unwarily crept into the Practice of the Court of Chancery, which may have given Occasion to Complaints against that Court, and may have created the Uneasinesses in his Majesty’s Subjects here, made it our indispensible Duty, to enquire strictly, by all means, to find out what were the Motives and Occasions of these extraordinary Resolves. And, to our great Surprise, we are well assured, That the late Assembly took no Pains to be informed, and had no Information, whereon they could, with the least Probability, found their Assertions as to the Facts alledged in the Preamble of the said Resolves; Notwithstanding, that if the Facts there alledged were true, it was their Duty to convince the Edition: current; Page: [859] World of the Regard they had to the highest Officer of Justice in the Province, and that nothing but the most evident Conviction could induce them to charge Him (though only by Insinuation) with Crimes, the naming of which must cause an Abhorrence in all good Men: For when they are occasioned by false Suggestions, (as we are well assured these are) they are meer Calumny.

When we consider, That the most upright Judge cannot escape the Resentment and Malice of Ill Men, That his faithful Administration of Justice is too often the Occasion of such Malice and Resentment, and that it is the Duty, even of every private Man, as much as in his Power, to preserve the valuable Character and good Name of a just Judge, against all Attempts whatsoever. We are concerned that the Assembly was so little upon their Guard, in so tender a Point, as to suffer a Person to draw their Resolves, who they know was full of Resentment, on account of a Decree lately given against him in Chancery; and who, notwithstanding of his Appeal being allowed, seems to put the Success of his Cause on attacking the Authority and Character of the Court, which, in another Case, he had so far owned as to make use of its Authority, in obtaining Relief against a Judgment at Common Law.

But, though we be thus justly moved on this Occasion to disregard the Allegations in the said Preamble, it has not prevented us from taking notice of any real Grievance come to our Knowledge, and of thinking of the proper Methods to Redress them, and to ease the good People of this Province. For this Reason we humbly represent to Your Excellency, That we are informed, That the Fees now taken by the Officers of the Court of Chancery and the Practitioners of the Law, are generally complained of by the Suiters in the Court of Chancery, and that this may deserve Your Excellency’s Consideration, though the Fees established be less than those allowed the Officers of the high Court of Chancery in England. We must likewise observe at the same Time, that the high Sums, which some Bills of Cost have lately amounted to, are in Part owing to the Arts of the Practitioners in drawing Bills of Cost, but chiefly to the Contrivances of some Practitioners and their Clients, to delay or avoid the Justice and Equity of that Court.

We are therefore of Opinion, That Your Excellency may order the Ordinance for establishing the Fees of Chancery to be reviewed, that they may be adapted better to the present Circumstances of this Province: That the Masters have proper Directions to avoid the Arts of the Practitioners in Augmenting their Bills of Costs. And we Pray Your Excellency to think of all proper Means, to prevent all Proceedings which delay a speedy coming Edition: current; Page: [860] at Justice, and which are the only true and great Grievances in the Courts of Chancery.

To conclude, We perswade our selves, That when People of this Province allow themselves to compare the Actions and Proceedings of the Governour and Council, with those of their own Representatives, and seriously reflect, how much Differences and Jealousies, industrously fomented between the several Branches of the Legislature, prevent that Harmony and Impartiality which is necessary in composing and passing of Laws for the publick good, every Man in his Station, will endeavour to prevent the like for the future. But, as we conceive that the Matters now before Us, do highly concern His Majesty’s Authority in the Government of this Province, We are of Opinion, that these Proceedings ought to be laid before the Lords Commissioners for Trade and Plantation, that His Majesty may be fully informed, and give such Directions as He shall think proper. Which is humbly submitted to Your Excellency by.

Your Excellency’s most Obedient humble Servants,
By Order of the Committee
Cadwallader Colden, Chairman.

ORDERED, That the foregoing Report, and all the Minutes on this Subject, together with all the Papers referred to in the said Report, and necessary to explain it, be forthwith printed and published by Authority, and dispersed throughout this Province.

It is further Ordered That the Gentlemen of the Council, or any five of them, be a Committee to review the Ordinance of Fees for the Court of Chancery, and to moderate the same in such manner, as they shall judge agreeable to the Circumstances of the Province; and to consider of Remedies for the several Inconveniencies mentioned in the said Report.

At a Council held at Fort-George, in New-York, August 30th 1728.

PRESENT.

{ Mr. Lewis Morris, jun.
Mr. Van Dam, } Mr. Abraham Van Horne,
Mr. Clarke, Mr. Wm. Provoost,
Mr. Colden, Mr. Phil. Livingston,
Mr. Alexander, Mr. Kennedy.
Edition: current; Page: [861]

Mr. Morris, in his Place, read a Representation of some of the Members of this Board, concerning the late Assembly of this Province. After which he moved, That the same might be entred in the Minutes of this Day. Whereupon the Question was put, Whether the said Representation be entred? It was carried in the Affirmative.

Ordered, That the said Representation be entred accordingly. Which is as follows,

To his Excellency in Council.

It is with the greatest Concern we find the Proceedings of a Committee of the Council, of which we were the Members, taxed by the Assembly, with the highest Violation of the Privileges of the General Assembly, and with rendring the Liberties and Properties of the People precarious, as is but too plainly insinuated by their printed Votes of the 30th of July last: We therefore think it our indispensible Duty, with respect to that Regard which is due to your Excellency, to the Representatives of the People, and to that Justice which is likewise due to ourselves, to set the whole Matter in a true Light, and to Place the Blame of all Misunderstandings, where we are convinced it ought to be laid, by giving the following short Account of the Occasion of it, and the Proceedings in the present Differences and Animosities, while Mr. Philipse was at the head of the last Assembly, he became Defendant in a Suit in the Court of Chancery of this Province, for Lands of great Value, and the Matter in Dispute coming to hearing, on Bill and Answer, the Governour decreed (sometime in the Summer before the last Assembly) in behalf of the Complainants. This decree however, was not, in Form compleated, till the 23d Day of November last, while the Assembly was sitting.

Two Days afterwards (his Excellency having sent for the Assembly to the Council Chamber, to be Witnesses to his passing the Acts) went about Noon in the usual Form to the City-Hall to publish them, where he was informed of the Resolves made that Day by the Assembly, against the Court of Chancery, and thought fit at his Return to the Council Chamber to dissolve the Assembly.

The Council entred some Counter Resolves in their Minutes, and a Committee was appointed to make Observations on the Resolves of the Assembly; and afterwards, were directed to send for Persons and Papers, and to examine them upon Oath, if Occasion shou’d require it.

We thought it our Duty, not to publish all the Particulars of this Examination, because it may discourage future Discoveries to mention (without Edition: current; Page: [862] evident Necessity) so much as the Names of the Persons from whom we had our Information; it is sufficient for the present Purpose to declare, That it evidently appeared to us, that there had been no Complaint of the Court of Chancery made to the Assembly, no Information given them of any ill Practice. That Mr. Philipse, Speaker of the House, only read a Paper of his own Hand-writing, containing all the Words of the said Resolves, and of the Preamble to them, as they are now entred upon the Journals of the House, without any Alterations, except of the Words Nemine Contradicente,24 which upon the Objection of one of the Members, were struck out.

That notwithstanding, these Resolves recite a Report from the Committee, there was no Report made, either verbally or in Writing, but this Paper only read by the Speaker, which of it self plainly shews it cou’d not be the Report of the Committee. It likewise appeared to us, That there had no mention been made in the House of any Grievances from the Court of Chancery before the said 25th of November tho’ it was well known for some Days before, that the Sessions were to end that Day, and that the only Mention made of the Court of Chancery in the Assembly, was by reading that Paper, which was likewise done so little a while before the Assembly was called up to the Council Chamber, (that the Clerk, tho’ there was no Interruption made) had not time to enter it upon the Minutes, before the Members left the House.

It further appeareth to us, That the Committee of Grievances was convened in a more private Manner than usual, in the Evening before the Resolves were made, That no Complaints of the Court of Chancery were made to that Committee, during the last Sessions, at any Time, except once, that the high Fees of that Court were mentioned by one of the Members of that Committee, and no Notice taken of it, till that Evening before the Resolves were made in the House, when Mr. William Smith, Abraham Governuor and Sarah Hett, who were all interested in a Suit then depending in Chancery,—and no other Persons, appeared before the Committee to Complain; and we have Reason to believe likewise, that the Persons did not appear of their own accord, but were sent for by one of the Members of the House, and their whole Complaint was of a Writt Ne Exeat,25 issued against them, as to the Edition: current; Page: [863] Occasion of which, we must refer to Pag. 10 of the printed Decree in the Case of Medina, &c. against Hett, &c. These things being clearly made out to us, it is easy to conceive what Impression these Resolves (obtained in this manner) made upon our Minds, where we see one of the Branches of the Legislature, the Representatives of the People, thus blindly giving up their Judgments to the Will of one Man, without the least Regard to Justice, or to Truth, or to the Honour of the Person the King had entrusted with the Government of this Province: For how can they be said to have any Regard to Justice, when they proposed no less than the Reversing all the Decrees in Chancery, without knowing, or in the least enquiring into the Merits of any one Cause, or when they endeavoured to blacken the Character of the highest Judge of the Province, tho’ no one thing in his Conduct appeared to them, that deserved the least Blame? Or what Regard cou’d they have to Truth, when they assert Facts of the highest Nature, without desiring the least Evidence to any one of them? And all this aggravated by the greatest Disrespect that can be shewn, to his Majesty’s Authority in his Courts of Justice.

Your Excellency will easily believe, what Abhorrence the Discovery of these Things raised in our Minds, and yet we hope that our Conduct will make it manifest, that these Discoveries did not lead us into any indecent Passions, tho’ if they had, we might on such an Occasion, {have} hoped for large Allowances from the most severe Judge. No, May it please your Excellency, We proceeded with a very different Temper of Mind, we did what the Assembly ought to have done, we enquired, with the greatest Strictness, into the Practice of that Court, as the Council is certainly bound in Duty to do, when any Complaints of Grievances come to their Knowledge; And we enquired of all those who were most likely to inform us, among which we ought to expect the most Voluntary, as well as ample Information, from those that made the publick Complaints; and however unreasonably backward some of them were, from informing us, we neglected no Information we cou’d obtain, we found the Fees taken by inferiour Officers, to be, in many Cases, too high, and we found the Lawyers had been guilty of many Abuses in their Practice, in prolonging Suits, and increasing the Expences thereof, by manifold Contrivances; but to the Honour of the Judge of that Court, we must say, we cou’d find nothing Blame-worthy in the Proceedings of the Court it self, and we are persuaded it can stand the severest Enquiry. We have not only enquired into these Abuses, but hope we have likewise provided effectual Remedies for them, as we think, will evidently Edition: current; Page: [864] appear to all impartial Judges, who shall see the two late Ordinances for regulating the Fees and Practice of the Court of Chancery, prepared by this Committee.

Had we not then, May it please your Excellency, good Reason to expect that these our Proceedings wou’d be highly acceptable to the People of this Province? We must presume, your Excellency is surprized to hear that they have not. We must think therefore, that the same artful Contriver that had before so strangely influenced the Assembly, influenced the People in no less strange a Manner; for it was done by such Arts and Contrivances, as cou’d be suited to no Purpose, but such as appears too evidently to have been His, in the Resolves of the late Assembly, such Falshoods and Slanders were spread amongst the People, of his Excellency our late Governour, and some of the Members of the Committee, that they cou’d have been invented with no other View, but to incite the Mob, and with the Hopes that we must sink under the Load of Calumny, which was laid, upon us; and that the Discovery of his Designs might be thereby prevented.

The Uprightness of our Intention, (for on such an Occasion as this, Men are allowed to defend themselves with less modest Reserve than is usual on other Occasions): We say the Uprightness of our intentions made us confidently hope for the Assistance of all Honest Men, and therefore we cannot forbear declearing our Concern at the want of some Assistance, we had a right to expect in our Proceedings; for thereby we were not only discouraged, and an Opinion impressed on the People to our prejudice, but also the Difficulties we laboured under, were highly augmented, and the Artifice used against us, more easily promoted.

The Resolves of the present Assembly of the 30th of July, and which we are assured were procured in the very same Manner those of the last Assembly were, oblige us to be more particular in one Point, than we shou’d otherwise have thought there was any Necessity; for it is insinuated in these Resolves, that the Committee of Council sent for some of the Members of the last Assembly, in an imperious Manner, and confined one of them for his insisting, that he thought himself, accountable to the House only, for any Act done in it. The Truth of this Assertion did not in any manner (as we have reason to believe) appear to the House, by any Complaint or Information whatsoever, made there, but is on the contrary such an Unfair Misrepresentation, that it cannot be doubted from whose Hand it came. The Truth of that matter in the particular instance which they chiefly point, is this,

Edition: current; Page: [865]

We ordered your Messenger to give our Service to Mr. Beekman, and tell him, that the Gentlemen of the Council desire to speak with him at Mr. Blaggs. A very imperious way of sending for them: And when he came, he was desired to take a Seat with us at the Table, which he did, and no doubt was using him with a very high Hand! We beg our Excellency’s Pardon, if we cannot forbear some Resentment on this Occasion. We told him the Occasion of our sending for him, was, that we might be informed of what Complaints and other informations the Assembly had against the Court of Chancery, that we might have an opportunity of Redressing the Grievances, and the Governour of Clearing himself of the Reflections which seemed to be cast upon him.

These Things being put in the form of Question, all that we cou’d obtain from him, was, That he would make no Answer. We then asked him, if he thought the answering any of these Questions, could do him any personal prejudice? But all he would say, even to this Question, was, that he wou’d not Answer. He being desired to with-draw, and afterwards called in, and seated with the same respect as before, some Arguments were used to perswade him to Answer; but he appearing resolute, we desired he wou’d attend us at any other Time, we shou’d give him Notice. Upon which, he answered, in a haughty manner, that he wou’d, if his Business did not call him any where else. And while we endeavoured to put a good Construction on his Words, he endeavoured more and more to manifest his disrespect. And when we desired him to stay in the House, till we considered on these last Answers, he said he wou’d stay an Hour or so long as it wou’d be Convenient to himself, or Words to the same Purpose. Upon which the Messenger was ordered not to suffer him to go out of the House, without further Orders from us; and about an Hour afterwards, he was told to go about his Business. We do not remember his saying, That he did not think himself accountable for any Act done in the House, nor do we perceive how it cou’d be a pertinent Answer, at least, to any Question then put to him; for we did not Charge him, or any other Person, with any Crime committed in the House, or if we had, and this had been his Answer, we cannot say, that we shou’d have been satisfied with it; for if any Crime had been committed, there the House cou’d have taken no farther Notice of it, than as it was Likewise, a Contempt of the House, and must have left the Punishment of the Crime itself to a proper Judicature, we think that Person must certainly have been accountable. This is that Calling to an Account and Confinement which the Assembly resents, as the highest Violation and Breach of the Priviledges due and of Right belonging Edition: current; Page: [866] to General Assemblies, and of Pernicious and Dangerous Consequence to the Liberties of the People. We heartily wish, that their Resolver may never affect the Privileges of Assemblies; and the Properties and Liberties of the People, more than any Act of Council ever did, since we had the Honor to sit at that Board.

Upon the whole, we beg leave to observe to Your Excellency, that unless such Attempts, as this be effectually Discouraged, the Authority of His Majesty’s Courts may often be in Danger from the Artifices of popular Men; that Judges may be frightned, even in cases where the King is highly concerned, from giving Judgment against a leading Man of an Assembly; and that the Poor may have no Means left of Defending or Recovering their Right, when invaded by Rich and popular Men.

If such an open Invasion of the Kings Prerogative shou’d now be passed with neglect, any discourse of it, for the future, may become the Jest of the People.

When Your Excellency considers, that the Gentlemen of His Majesty’s Council, as well as all the Officers of the Government, hold their Places only during Pleasure, and that it must be very difficult to Guard against private Misrepresentations, where such open and publick Ones are attempted, they may be very much inclined to free themselves from troublesome Disputes, that tho’ we know of no Instance where the Council have overstretched their Authority, there are many where they have yielded to the Assembly, and upon which the Expectation of the Assembly have always risen. For Example, the Assembly having once gained the appointing of the Officer, with whom the Revenue is to be lodged, they afterwards assumed the same as to all the Collectors, so that properly speaking, not one Farthing of the Money given by Act of Assembly, for support of Government, is in the Kings Hand. They were not contented with this, but expected likewise the Nomination of all the Officers, both Civil and Military, in their several Counties, and would lately have assumed to themselves, to be the sole Judges of the Rewards due to the Officers, from the highest to the lowest, without the Consent of either the Governour or Council, or giving any reason for the encreasing or lessening any Salary. The Consequences of which are to evident to need mentioning.

From this, Your Excellency will perceive that the Part of the Constitution of our Government, which is designed to Counter-ballance any Incroachment of the Assembly, will often be too weak, if it be not strenuously supported by our Superiors. And accordingly, the Effects of this unequal Edition: current; Page: [867] Ballance, generally break out upon the Death or Removal of a Governour, when the Authority of the Council is least able to withstand the Arts of Popular Men, because the People love Changes, and there is less Fear of Punishment. When it is to be observed, That few Governours are willing to enter into Disputes at their first Arrival, but generally fall in with the Popular Party. We perceive, the Force of Popularity daily increasing, and therefore cannot but be apprehensive of what Heighth it may reach to, especially when the Assembly (since Your Excellency’s Arrival) openly and boldly claim a Privilege, which can only belong to the supreme and absolute Authority, by asserting absolutely, That they are not accountable for any thing they do. This, no doubt, makes a strong Impression on the Minds of the People, and may make some Persons think themselves safe under the Protection of an Assembly, in the boldest Attempts that can be made on the Constitution. And we cannot forbear observing, That a Desire to be absolutely unaccountable, has always discovered a strong Byass towards Tyranny and arbitrary Power in those who have at any Time claimed this Privilege.

As we have no Reason to doubt that all possible Arts are used to misrepresent our Actions, so we may expect that this Representation will be said to proceed from a Spirit of Contention, now when it is given out, that the Assembly designs to drop the Dispute.

But, May it please your Excellency, after what manner is it done? They drop it, after they have charg’d us with the highest Invasion of their Privileges and the Liberties of the People, after they have declared themselves Not to be accountable, and after they have claimed a Power of calling the Council to an Account, We shall be well pleased, that this whole Affair be subjected to the strictest Enquiry, that it may clearly appear with what Spirit we have proceeded: We shall even be willing to have our Conduct in our private Affairs considered, as well as in the Publick, to make the Temper of our Minds appear more plainly; for if we be naturally of contentious Spirits, or inclineable to injure our Neighbour, or if we have not kept clean Hands, surely some one Instance can be given, and made out, but in this, we bid Defiance.

We shall be far from desiring to have our Resentments gratified, but we must zealously endeavour to discourage all Attempts on the Royal Prerogative, and the Safety of the People in their Properties and Liberties, from what-ever Hand they come. It is with great Pleasure we look on the Happiness of our Constitution, where the Prerogative of the Crown is so closely interwoven with the Safety of the People, that no Attempt can be made upon the one, Edition: current; Page: [868] without manifest Injury to the other. And this Observation has mightily supported Us in performing our Duty. But as we have not the least Reason to doubt of Your Excellency’s powerful Concurrence, not only in these our Endeavours, but likewise in removing all the Fears that have been cunningly imprest on the Officers of the Government in the Performance of their Duty. And as the doing of these Things cannot be the Works of one Day, we humbly submit them to Your Excellency’s prudent Conduct, which hitherto has given us the greatest Satisfaction.

R. Walter,
Cadwader Colden,
Ja. Alexander,
Lewis Morris, jun.
Fred. Morris, D. Coun.
Edition: current; Page: [869]

31: Sir John Randolph, The Speech of Sir John Randolph, upon His Being Elected Speaker of the House of Burgesses (Williamsburg, 1734)

With the death of its long-time speaker John Holloway in 1734, the Virginia House of Burgesses selected its former agent to Britain and clerk to succeed. The House was so pleased by Randolph’s speech following his election that it ordered it printed by William Parks, the only printer in the colony. One of the few such documents to have been printed contemporaneously, the speech is a classic statement of the importance of political moderation in a free polity. Eschewing the customary forms on such occasions, Randolph used his speech to praise the House for its “accustomed Prudence and Moderation.” Celebrating the fact that Virginia had “the Happiness, which seems almost peculiar to our selves, of being under none of the Perturbations which we see every where else arising from the different Views and Designs of Factions and Parties, and” having as “yet no Footsteps of Corruption among us,” he recommended temperate and disinterested but vigorous debate that would illuminate the problems before the House by bringing out the great “Variety of Opinions” among its members. “Truth itself will receive an Addition of Strength by being opposed,” he declared, “and can never be in Danger by suffering the Test of Argument.” (J.P.G.)

Edition: current; Page: [870]

the

SPEECH

of

Sir JOHN RANDOLPH,

Upon His being Elected

SPEAKER

of the

House of BURGESSES,

of

VIRGINIA.

Printed by Order of the House of BURGESSES.

WILLIAMSBURG:

Printed by William Parks. M,DCC,XXXIV.

Edition: current; Page: [871]

The Speech of Sir John Randolph.

GENTLEMEN,

I come now to experience all the Degrees of your Favor and Kindness to me; and it will not become me to pretend any Unwillingness to accept what you think me worthy of: Tho’ I know, after Gentlemen have emploied all their Interest to be elected into this Office, they usually represent themselves absolutely incapable of discharging the Duties of it. But if this be done without a Consciousness of the Truth of what they say, or any Design to depart from the Right of their Election, it must either be a false Appearance of Modesty, or a blind Compliance with a Custom, that perhaps, in the beginning, was founded upon Truth and Reason, but by Time, like many others, becomes only an Abuse of Words; which I cannot follow: And I the rather avoid it, because I intend, upon no Occasion, to give you any Instance of the least Insincerity, which I think not only very useless, but the most vicious Thing in the World. Therefore, I must own, I do with a particular Pleasure embrace the Opportunity you have given me, of employing my small Talents, which appear to you in a much better Light than they deserve, still in your Service; and I thank you for this additional Instance of your Confidence in me, in bestowing your greatest Trust upon me. But as to my Fitness to serve you, Time and your own Experience will best determine it; so it may be needless to raise your Expectations about it: Only thus much I will assure you, that all the Advantages I may have received from a long Experience of the Methods of this House, shall be improved for the Advancement of your Reputation, and the Public Good; and I will not imagine, that the Pageantry and Formalities of this Office, are any Part of the Honors of it, which I know must proceed from a Labor and Diligence to prevent any Imputation upon your Proceedings and Resolutions. To this I am bound, not only by the Duty I owe to you, but by my own Interest; since nothing can happen amiss here, that will not be reflected on me, perhaps in more than my due Proportion, while the Weight of my own Failings will lie wholly on my self, and perhaps of some that may be only imaginary: For as, on the one Hand, it is not the easiest Thing in public Debates, so to hold in one’s own Temper, as to avoid all Occasions of Reproach; so on the Edition: current; Page: [872] other, it is one of the hardest, to place what is done justly and laudably in such a View as will be acceptable to every Body. The Prejudices with which we imbibe all our own Opinions, which are generally impressed upon us too hastily, are often the Occasion of great Injustice in this Particular: And the Partiality of Mankind is such, that they cannot cordially approve what is done by those who do not concur with all their Sentiments; but are apt to charge the contrary Side with Ignorance, Obstinacy, or perhaps Corruption. Yet tho’ this be very common, every Body is ready to condemn it as one of the great Weaknesses of Human Nature; which is most evidently true from this, that both Sides, in every Opposition, of which one must certainly be in the wrong, entertain the same Rancour and Animosity against each other, from an imaginary Excellence of their own Modes of Thinking. But I have abundant Reason to hope, from my Experience of the Candor and Good-will of this House towards me, that I shall be exempted from any unkind Censures of this Sort; and indeed, seeing we have the Happiness, which seems almost peculiar to our selves, of being under none of the Perturbations which we see every where else arising from the different Views and Designs of Factions and Parties, and have yet no Footsteps of Corruption among us, instead of raising any Intemperance in our Debates, which are always unnecessary, we should look upon all Differences among us to proceed from the Doubtfulness of Expedients that shall be proposed for the Common Good: And upon that Account, the Minority should submit calmly and chearfully to what the Majority determines, ’til Time and Experience shall either convince, or furnish them with more forcible Arguments against it. Then we shall hear one another patiently, put the Weight of every Man’s Reason in the Ballance against our own, and at last form a Judgment upon the whole Matter; which, if not the wisest, yet, resulting from the Integrity of our own Principles, will be honest and commendable. But if we come, by our Resentments and Impatience of being out voted, or by our Affections, to consider Men more than the Matter, we shall be sure to be always in the wrong, because what we do from Considerations without us, can have no good Foundation; and we must lose all the Advantages of Reasoning and Argument. And, however Mankind may be provoked, by being thwarted with the Sentiments of other Men, a Variety of Opinions is not only absolutely necessary to our Natures, but is likewise of all Things the most useful; since if all Men were of one Mind, there would be no Need of Councils; no Subject for Learning and Eloquence; the Mind would want Edition: current; Page: [873] its proper Exercise, and without it, like the Body, would lose its natural Strength, from a Habit of Sloth and Idleness. Truth itself will receive an Addition of Strength by being opposed, and can never be in Danger of suffering by the Test of Argument.

These being Notions by which we should be directed, in discharging the Trust the People have reposed in us, if we would establish them in our Practice, we should then attain the true Dignity of our Representation; and I flatter my self, from your accustomed Prudence and Moderation, every Gentleman here will consider what it is to represent the People of any Country.

But indeed, I know I must make the worst Figure myself, if I shall be found unable to perform what it will be my Duty to dictate to others; if I shall endeavour to make the established Rules of your Proceedings subservient to my own Fancies and Humours, or Interests; or shall bring into this Chair a Restlesness and Impatience about Points that may be carried against my Sentiments; or shall pretend to any Authority of swaying any Member in his Opinion; I say, then I shall deserve to have no Influence upon your Proceedings; but do not doubt, nay I hope, you will mortify me with the utmost of your Contempt for the Inconsistence of my Theory and Practice. And if I shall happen to succeed better, I will pretend to no other Praise, but that of not having deceived the Expectations of so many worthy Gentlemen, who have continued to heap upon me such a Series of Favors, which so long as I retain the Memory of any Thing, I must look upon as the chief Foundation of the Credit and Reputation of my Life.

Edition: current; Page: [874] Edition: current; Page: [875]

32: [“Americanus”], Letter to the Freeholders and Other Inhabitants of the Massachusetts-Bay (Newport, 1739)

Signing himself Americanus, the anonymous author of this pamphlet first submitted it to Boston printers, who rejected it “for fear of incurring the Governor’s Displeasure, which might prejudice them in their Business,” with the result that the author, a resident of Massachusetts, published it in Newport, Rhode Island. One of the better examples of the sorts of election pamphlets that appeared in increasing numbers beginning in the 1730s in efforts to inform voters on the duties of legislators and to encourage them to vote for men of independence and fortitude, this pamphlet exhibited a profound concern with the growing influence of Governor Jonathan Belcher in Massachusetts governance. Citing John Trenchard and Thomas Gordon’s Cato’s Letter “upon the glorious Cause of Liberty,” the author reminded voters that, as “English Men,” they had been “born to Liberty” and lived under a constitution in which “your Governors have every right to protect and defend you” and “none to injure or oppress you” and in which they had “a large Share in the Legislature” and “the Sole Power over your Purses” and called upon them to choose representatives who would “be very tender of the least Privileges, and . . . keep a proper Guard upon encroaching Prerogative.” In particular, he recommended candidates able “properly to distinguish between the invaluable Priviledges granted by Charter, and the Instructions given to a Governour” and to understand “that Compliance Edition: current; Page: [876] with an Instruction which is contrary to the Charter” would amount to nothing less than “a traitorous giving up of the Liberties of their Country.”

If Americanus exhibited the typical colonial fear of aggressive prerogative, it also revealed the relatively new fear of corruption through patronage that was at this time so prevalent in Britain, where First Minister Sir Robert Walpole had developed a refined system of patronage and pensions to manipulate the British House of Commons. Thus the author warned voters against any candidates who had been or might be susceptible to corruption by “an ambitious or designing Governour” or otherwise have any attachments that made them less than “free Agents” or brought them under executive influence, powerfully recommending the election “of those uncourtly People, who have always kept that excellent Preservative of Liberty—Jealousy.” With far more patronage at his disposal, Belcher’s successor as governor, William Shirley, was indeed able to enhance gubernatorial authority considerably in the 1740s and early 1750s. (J.P.G.)

Edition: current; Page: [877]

LETTER

to the

Freeholders

and other Inhabitants of the

Massachusetts-Bay,

relating to their approaching

ELECTION

of

REPRESENTATIVES.

To extend the Governour’s Right to command, and Subjects Duty to obey, beyond the Laws of One’s Country, is Treason against the Constitution, and Treachery to the Society whereof we are Members: And, to dissolve the Ties by which Princes stand confined; and overthrow the Hedges, by which the reserved Rights, Privileges, and Properties of the Subjects are fenced about, tempts every Prince to become a Tyrant, and to make all his Subjects Slaves.

Judgment of whole Kingdoms and Nations. See, Page 3d.

Printed in the Year, 1739.

Edition: current; Page: [878]

Advertisement.

The following was offered to the Printers in Boston, but was rejected. One of them saying they dare not print it, for fear of incurring the Governor’s Displeasure, which might prejudice them in their Business.

To the Gentlemen Freeholders, and other Inhabitants, qualified by Law to vote in the Election of Representatives.

Gentlemen,

The annual Election of your Representatives drawing nigh, and the Importance of a good Election, being greater than is generally imagin’d, (nothing less than the civil Salvation of the People depending upon the same) has induced me, together with the Request of many of your Friends, to lay before you, the Necessity of using the greatest Care in your several Elections, not only from the great Danger of a bad One at all Times, but also from the present Circumstances of the Province.

In order to comply with this their Request, and to set before you the Danger you and your Posterity are brought into by a bad Election; I have publish’d this Letter, in which I have made use of some Helps from Cato’s Letters, which were wrote upon the glorious Cause of Liberty, and have been justly regarded by all wise Men of every Party; and therefore, what is done here in Imitation of those valuable Letters, cannot be judged to be factious, or against the Interest of the Publick.

But, however some may receive this, I am sure, every true Lover of his Country, (who has Honesty and Wisdom enough to refuse any Bribe offered him as an Equivalent for the least Priviledge of his Country) will approve of it, and govern himself accordingly in voting.

Gentlemen,

You are born to Liberty, as you are English Men, and as you are Descendents of the first worthy Setlers of this Country, who purchased their and your Liberties, at the most invaluable Price of their Blood and Treasure; it is therefore your Interest, and your Duty to Posterity, to preserve them entire, without suffering the least Breach to be made on them.

Edition: current; Page: [879]

The Constitution, which you live under, is an Epitome of a mixed Monarchy, where your Governors have every Right to protect and defend you; none to injure or oppress you. You have a large Share in the Legislature; you have the sole Power over your Purses: But it depends upon yourselves alone, to make these Rights of your’s, these noble Priviledges of Use to you. And in order to make this plain to you, I shall recount some of the Priviledges you enjoy by your Charter, and shew what a Part you have in the Government; as the End of it is, and ought to be, wholly for your Advantage.

The Charter ordains, that you shall have a General Assembly, convened, held and kept, every last Wednesday in May, which shall consist of the Governor and Council for the Time being, and of such Freeholders, as shall be elected and deputed from time to time, by the major Part of the Freeholders, and other Inhabitants qualified to vote in that Choice, present at such Election. This General Assembly, at their first Meeting, proceed to elect twenty eight Councellors; after which Election, they proceed to make what Laws may be necessary for the publick Good, to raise what Moneys may be necessary to support the Government, in defending and protecting you this is the sole Priviledge of your Representatives. To levy and assess reasonable Taxes and Assessments upon your Poles and Estates, is another Priviledge of your Representatives. The General Assembly have the Right of disposing of the waste Lands. The Consent of your Representatives is absolutely necessary in all Acts of Government, and many of them must originate in the House, especially those material Articles of supplying the Treasury and taxing the People.

By this you may see the great Share you have in the Government, having at least two Branches of the Ligislature (who have all the Moneys and other Advantages in their Power) which are appointed by your Election. Your Representatives (who are immediately of your Appointment) are the Trustees of your Liberties, who, if they give up, or are inclined to give up any the least of them, you have it in your Power, the next Year, to choose more faithful Men in their Room; and such Representatives will choose such Councellors, and then all will be well. For not only good Care will be taken, that no Laws but such as are for your Good and Welfare shall be enacted; but also, that none be trusted with the Execution of them, except those who have Competent Understanding and Integrity. Such a General Assembly (which depends upon your Election of Representatives) will be very tender of the least Priviledge, and will keep a proper Guard upon encroaching Edition: current; Page: [880] Prerogative. They will be able properly to distinguish between the invaluable Priviledges granted by Charter, and the Instructions given to a Governour, and will know they have no Business with Instructions (except from the People) and that any Compliance with an Instruction which is contrary to the Charter, is a traitorous giving up the Liberties of their Country, and an Abuse upon his Majesty. For although it be one of the wise and prudent Maxims of the English Government, ‘That no Blame or Wrong be imputed to the King’; it is also another, ‘That no Wrong be done to the People’. They will know, that the only Rule of their Government ought to be your Good, and that they are inviolably obliged to keep a watchful Eye upon your Charter, as their Directory, and to see that no Infraction be made on it. That being your Constitution, from such a Behaviour in your Legislature, you may naturally expect, his Majesty’s Council (who constitute the middle Branch) will, in giving their Consent to the Appointment of civil Officers, be actuated by the same good Principles, they were, as a Branch of the Legislature; and consequently, they will not consent to the Appointment of an unqualified Person to an executive Office in the Government, nor to the Removal of any Judge, unless he has been guilty of Malefeazance in his Office. It was (Gentlemen,) one of the material Blessings obtained at the happy Revolution, that the Tenour of the Judges Commissions in England, should be altered, from during Pleasure, to, so long as they behave well. The Crown having the Power of creating and removing Judges at Pleasure, was found by fatal Experience, to be one of the greatest Misfortunes the Nation laboured under; the Law being always expounded in Favour of the Crown, from whence arose the Doctrines of dispensing Power, the Forfeitures of Charters, and many other slavish ones, destructive of Liberty, which produced the Nation’s Delivery from Slavery by King William of immortal Memory; who restored to our Forefathers their Priviledges, that they lost in the common Calamity of those Times, which so much endeared that glorious Deliverer to those Worthies, that there was not then, as there scarce is now, a Jacobite to be found in the whole Province; so that we can vie with any of his Majesty’s Subjects for Loyalty.

You have here seen some small Sketch of your happy Constitution by the Charter, which confirms to you all the Priviledges of English Men; and as a Reward for your Ancestors great Merit in setling this Country, adds many others, giving you a larger {voice} in the Government, than the People in England have. The Improvement of which depends upon you wholly; for to preserve Edition: current; Page: [881] your Liberties, they must be kept up in their whole Strength. And to this End, it lies upon you to choose for your Representatives, Men that will be really such; Men that you can’t suppose will be ignorant or careless of your Interests; or what is much worse, that will act quite contrary to them.

For Names (Gentlemen,) will not defend you, when the Thing signified by them is gone. The Emperors of Rome were as absolute with the Shew of a Senate, and the Appearance of the People’s choosing their Praetors, Tribunes, and other Officers of the Common Wealth, as the Eastern Monarchs are now, without these seeming Checks, and this Shew of Liberty; and in some Respects, they were more secure; as the Infamy of their Tyranuy was shared by those Assemblies, the Advantages were all their own, and the Condition of the People was rather worse for these mock Magistrates, and pretended Representatives; who, under the Colour and Title of the Protectors of the People, were, at the People’s Expence, the real Helpers and Partakers of the Iniquity of the Tyrant. The Kings of France have Parliaments, but Parliaments which dare not dispute their Royal Pleasure; and the poor People would not fare one Jot the better, if these Parliaments were bribed not to dispute it.

This wretched Case, Gentlemen, will be yours, and the wretched Case of your Posterity, if ever an ambitious or designing Governour shall, hereafter be able to corrupt or awe your Representatives. And whatever wicked Bargains are then made will be made at your Expence, and you must pay the terrible Reckoning at last. It requires therefore your best Tho’ts, and most vigorous Resolutions, to preserve your Constitution entire in all its Parts, without suffering any one Part to prevail so far over the other, as to reduce it in Effect, tho’ not in Name, to a simple Form of Government, which is always Tyranny. It will be immaterial to you, whether this is brought about by Confederacy, or by Force; by Knaves, or Fools; whatever be the villainous Means, Violence, Oppression, and every Rank of Evil will be the End. Wherefore, with an honest and generous Design of saving your Country, you ought to choose Representatives, whose Interests are at present the same with your own, and likely to continue the same. Representatives, who are not already pre-engaged, nor, from their Circumstances, Profession, Offices, and Manner of Life, are likely to be engaged in a contrary Interest. He will prove but a sorry Advocate, who takes Fees from your Adversary; and as indifferent a Plenipotentiary, who receivs a Pension from the Prince, whom, he is commissioned to treat with: Nor can there be any Security in the Edition: current; Page: [882] Fidelity of One, who can find it more his Interest to betray you, than to serve you faithfully. Vertue and Vice will be but ill ballanced, when Profits and Honours are thrown into the wrong Scale. A great Protestant Peer of France, having changed his Religion, in Compliance with his Master Henry the 4th of France, who had changed too, was soon after asked by that Monarch publickly, which of the two Religions he thought the best? The Protestant, Sir, undoubtedly, said the Peer, by your own royal Confession, since in Exchange for it, your Majesty has given me Popery and a Marshal’s Staff to Boot. Where Boot is given, there is always a tacit Confession that the Exchange is unequal without it. Choose not therefore such, who are likely to truck away your Liberties, for an Equivalent to themselves.

It is the Right and Duty of the Electors, to examine into the Conduct, and to know the Opinions and Intentions of those, who offer themselves to their Choice. And (if they have served before) the best Way to form a Judgment of their present Views and Designs, is to survey their past Behaviour, when in Office. How can any of you be truly represented, when you know not the Sentiments of those who represent you? It is still your happy Lott, that you have frequent Means and Opportunities to resent effectually the Corruption of those, who have basely betray’d their sacred Trust, and slighted with an insolent Scorn and Contempt, your prudent Instructions, given for the Preservation of your Liberties; admit no such Man to be so much as a Candidate again, nor indeed any Man to be a Candidate, until he has declared in the most explicit and solemn Manner, his most hearty Regard for your invaluable Liberties, and his fixt Resolution to preserve the same, and withstand any Attempts to destroy them.

This, Gentlemen, is your Time,—which if you suffer to be lost, may be forever lost. Choose not therefore those, who would bribe you, with getting you made distinct Parishes and Praecincts, or with obtaining any other separate Advantage for you, because, you may depend upon it, the Purchase of this Favour for you, must cost you very dear, for they must give a Quid for your Quo. And if, in order to get this Favour for you, and to establish his Interest with you, your Representative should, by his Vote, (which is probable) gain a Compliance with an Instruction diametrically opposite to the Charter, or do any other Damage to the Publick; upon duly stating the Accompt, you’l find yourselves upon the Ballance great Losers, having suffered more in the publick Loss, than you have gained by your private Advantage. And History furnishes us with numberless Examples of the greatest and heaviest Edition: current; Page: [883] Misfortunes falling upon those and their Families, who have given up the Liberties of their Country, in order to gain a private Advantage, that being very insecure under an arbitrary Administration.

Choose not those, who are in Confederacy with the Disposers of civil and military Honours, by which Means, some have been able to carry almost all their Points in the House, a few Years past. For you may depend upon it, they can’t act as free Agents; and what the Consequence of that in a few Years will be, you may judge from what has already happen’d to you. By this, you find Laws enacted without this essential Clause in them, viz. Any Law, Usage, or Custom to the contrary notwithstanding; which is a repealing Clause: But this is left out, because, the Governour has an Instruction to consent to no repealing Act whatever; which is depriving you of one of your best Privileges, being nothing less, than taking from the General Assembly the whole legislative Power granted them by the royal Charter; for it ever will be a fundamental Maxim in Politicks,—That the same Power which can enact, can either alter or abrogate:—According to which, If our General Assembly have no Power to repeal, they never had a Power to enact; from whence it will necessarily follow, That our whole Body of Laws are ipso facto, null and void. This mean Compliance with Instructions, is the Root and Foundation of all your heavy Sufferings, and may yet produce worse and more heavy; whereas an honest Non-compliance with an Instruction, which infringes upon your Liberties, will be a considerable Security to them, by being never troubled with it again, unless now and then by Way of Scarecrow, as you have been with the Instruction for fixing the Salary.

You are Freemen, and Men of Reason and Spirit; awaken your Spirit, exert your Reason, and assert your Freedom. You have a Right to Petition the General Assembly, to propose your Thoughts and Grievances to them, to be heard and relieved when you suffer any.

Choose not the Gentlemen of the Militia; for altho’ it may be objected, That they are not so dependant, as the Gentlemen of the Army in England, because they receive no Pay; yet remember their Duty, together with those Darlings, their military Honour and Power, depend upon obeying the Word of Command, as well as the Officers of the regular Troops. And it is well known, That Power and Honour have a greater Influence upon most Men than Money. Because, Coveteousness is a Vice, that even the Miser himself would have the World believe he despises; whereas, Power and Honour are allowed to be admired by all. Your military Officers have considerable Edition: current; Page: [884] Power lodged in their Hands, more in some Respects, than is proper and convenient for your Interest, to entrust many of them with. And this has been considerably augmented by the new Law passed by the last General Court, for raising the military Fines, threefold.

Choose not those Officers who depend upon Fees, because, as you now have two Sorts of Money passing, and the Bills of the old Tenor, extant, are to be called in by the Year 1741, and no other Money is to be passing (unless the next General Assembly take Care of you) except that of the new Tenor: You may depend upon it, the Officers will endeavour that no new Regulation shall be made of their Fees to prevent your being oppressed, but that they shall remain upon the present Establishment. So that a Place now worth in Fees 500 l. per Annum, will then be worth more than 1500 l. per Annum. A very fine Advance upon your growing Poverty.

If a Motion should be made and obtained, in the Courts of this Province, That all Bills of Cost should be taxed, to be paid in Bills of the new Tenor, it must considerably encrease your Law Charges, especially when you compute the Costs of the many small Actions brought before Justices, for Debts not exceeding Forty Shillings, and for the unpardonable Crime of not Training, for which terrible Fault, I knew a Man pay Thirteen Shillings new Tenor, the Justices Fees, which added to two Fines sued for, made in the whole Twenty Three Shillings new Tenor, and so amounted to Three Pounds Nine Shillings, Bills of the old Tenor. By this you see what you are coming to, unless you prevent this growing Oppression by using proper Care in the ensuing Election of Representatives. I am not insensible, That almost all the Officers, civil and military, will exert themselves in the ensuing Election, in favour of themselves and their Brethren; and will tell you, they are sensible how prejudicial the new Tenor Bills are, and that they carry a Sting in their Tail, but that, that shall be prevented by a new Regulation of Fees; yet regard them not in this Affair, because your All is at Stake; (altho’ in their respective Offices, when they behave well, as many of them, to their Honour, do, treat them with all due Deference and Respect) but tell them plainly, you fear your good Nature and Credulity in sending them and their Friends, your Representatives, has brought all your Misfortunes upon you; and that therefore you think it high Time, for the sakes of their Families, as well as your own, to alter your Elections, and to choose some of those uncourtly People, who have always kept up that excellent Preservative of Liberty—Jealousy; and that you have already suffered too much by Edition: current; Page: [885] gilded Pills, to take any more of them; and that you can have no Manner of Reliance upon this their Promise, least a Law for regulating Fees, should meet with the same Fate, which the Bill did, that, Anno 1734, passed the House of Representatives, for restraining the Clerk of the Naval Office, taking exorbitant Fees. Tell them further, That this Instance convinces you, That you are to hope for no Relief from such Gentlemen; for if a Law would not pass to check the Exactions of such an obnoxious Officer, who obtained that very profitable Post in a disagreable Manner, and stands, as he ever has done, upon very ill Terms with many great Men here. It can’t be reasonably thought, that they, when they get into Power, will do more against themselves, their Friends, and the Governour’s Friends, than they did against a Man, whom they would have gladly curtailed in his Fees, but that they feared it would have been made use of as a Precedent, to have prevented their, & their Friends intended Oppression. This glaring Instance must always stare them in the Face, and give them the Lie, when they pretend to say they are for any other new Regulation of Fees, than what shall be in favour of the Officers. No! Gentlemen, Tell them Interest will not lie, and you are not to be deceived; and that upon this Maxim you will act in your ensuing Election. Tell them you are not quite so blind, as not to see, That as your Trade decays, the Number of Candidates for every Vacancy will daily encrease, which must give Prerogative a considerable Advantage over Liberty. Tell them, all the additional Profit raised by this new Money must come from you, and so add double Weight in the Scale of Prerogative (which is heavy enough already) against Liberty; and that this ought to make you consider, what large Strides Prerogative will be daily making towards absolute and despotick Power, when it is so considerably augmented, and the Supports of Liberty so much enfeebled.

Gentlemen, It highly imports you to consider what you are about, and whether you will bring Life or Death upon us. Oh! Take Care of yourselves, and of us all: We are all in your Hands, and so at present are your Representatives. But very quickly the Scene will be shifted, both you and we shall be in their’s.

Choose therefore honest Freemen, who when they have been your Representatives, have followed your Instructions, taken Care of your Privileges, and have showed themselves firmly attached to the best Interests of their Country, and have been as tender of your Liberties, religious and civil, as of the Apple of their Eyes.

Edition: current; Page: [886]

Choose Men of good moral Characters, who have always in their Dealings in Meum et Tuum1 acted honestly; for it is a great Hazard, whether he who would cheat his Neighbour of Twenty Pounds, will not sell his Country for Judas’s Price.

Choose such as have always shewn themselves, and are likely to continue, your fast Friends; who have opposed every unjust Exaction of your civil Officers, and have almost stood alone for your Sakes, in the Prosecution of such Officers for that Offence.

Choose such as are most likely to relieve you from such Burthens, under which we all sadly groan, and under which we must certainly sink, never to rise again, if we are not relieved.

I am, Gentlemen, With exceeding Sincerity, and all good Wishes, Your most affectionate Humble Servant,
Americanus.
Edition: current; Page: [887]

33: [Maurice Moore], A True and Faithful Narrative of the Proceedings of the House of Burgesses of North-Carolina (Williamsburg, 1740)

Acontroversial figure in North Carolina public life, William Smith was chief justice of North Carolina for most of the 1730s, notorious alike for his arbitrary and corrupt behavior on the bench and for his inability to control his temper. By dissolving the Assembly and calling for new elections, Governor Gabriel Johnston saved Smith, a strong supporter in his long battle with local magnates over land titles and quit-rent payments, from a legislative investigation that would almost certainly have gone badly for him. Smith and his adherents worked successfully to elect members who favored him, and while the new Assembly that met in 1740 was unable to head off the Smith investigation altogether, it had the votes to circumscribe it so severely that Smith was acquitted. Unable to present its full proofs to the Assembly because the majority had allowed it only two days to collect them, the minority added proofs to material from the legislative journals to make its case against Smith in the pamphlet printed here, which serves as another excellent example of a perennial problem in colonial British America: a judicial system rendered ineffective by corrupt, incompetent, or unfit judges.

Scholars have followed some contemporaries in treating this incident as an impeachment, one of the few to occur anywhere in colonial British America. As the pamphlet’s author takes pains to point out, however, the “Articles Edition: current; Page: [888] exhibited against the Chief Justice were not Articles of Impeachment,” but “Articles of Complaints for high Crimes and Misdemeanors committed by him in the Execution of his Office,” intended to force Johnston to suspend Smith until the Crown’s pleasure should be known. Seventeen articles accused him of a wide variety of offenses, including subversion of the laws, packing juries, charging fees higher than those allowed by law, denying jury trials in many cases, imposing excessive fines and lengthy imprisonments, otherwise ignoring “due Process of Law” when it suited him, and many others. Smith’s “Exactions and Extortions,” his critics maintained, were “more burthensome than the General Tax of the whole Province, every Corner of the Country” being “fill’d with his Oppressions, and all the People cry[ing] aloud for Justice.” Despairing that under a judicial system headed by such a man “neither the Laws of Great Britain nor those of their own Province” were “sufficient to secure” the people “against the arbitrary Attempts of Men in Power,” the author called upon the public to stand up against such violations of “the common Benefits and Priviledges, secured to us by Law” and by the “British Constitution, where Liberty is our undoubted Inheritance . . . and ought to be enjoyed in it’s full Extent.”

Because North Carolina did not yet have a printing press, this pamphlet was published in Williamsburg. No individual claimed authorship, but the text suggests that it was largely the work of one man, probably Maurice Moore, the minority leader and a large landholder in the Cape Fear region of the colony. (J.P.G.)

Edition: current; Page: [881]

a

True and Faithful

NARRATIVE

Of the Proceedings

of the

House of Burgesses

of North-Carolina,

Met in Assembly for the said Province at

Newbern, February 5th 1739/40.

On the Articles of Complaint exhibited before

them against the Honourable William Smith, Esq;

Chief Justice of the said Province, for high Crimes

and Misdemeanors done and committed by the

said William Smith in the execution of his Office.

Published for the Justification of the Members of that House,

who voted the said Articles-sufficiently prove for the said Chief Justice

to be charged therewith.

Addressed to the Freeholders of North-Carolina.

Pro: xxix. 2. When the Righteous are in Authority the People rejoyce,

but when the Wicked beareth Rule the People mourn.

1740.

Edition: current; Page: [890]

A True and Faithful Narrative, &c.

The slow and confused Proceeding of the late Assembly held at Newbern for this Province, the little regard the Majority of that House seemed to have for the Interest of their Country, in rejecting the Evidence brought to support the Articles of Complaint, exhibited before them against Mr. Chief Justice Smith, makes it necessary for those Gentlemen who happened to differ in Opinion from the Majority to appeal to the World for their Justification, and to acquit themselves of any Blame that may lay at their Doors, by publishing those Articles against the Chief Justice, with the Proceedings thereupon, to the World, and they are the more inclined to this Method of Proceeding, not only because it will open the Eyes of the deluded People of this Province, but that the Iniquities committed by Mr. Smith in the Courts of Justice where he presides may meet with the Censure they deserve.

Before I enter further into the Proceedings of the last Assembly it will not be amiss to look back into, and inquire out the Causes of the Dissolution of the former, who took more pains to reconcile and unite the divided Interests of their Country, than any that went before them. That Assembly was, (according to it’s Prorogation) to have met at Newbern, on the fifth Day of November last; accordingly Twenty-six Members met [at that Town, but four of those Gentlemen being more attached to the Chief Justice, than to the Service of their Country refused to attend the House, by which Means, there wanted two Members, to make a Majority without which their could not be a House; His Excellency the Governour being acquainted with the true State of the Affair, prorogued the Assembly several Times, in hopes more Members would come, but the Season of the Year and the intemperance of the Weather, prevented the coming of any more, until after the Dissolution of that Assembly, which happened a Week after the Time appointed for it’s Meeting. Thus after many Prorogations within the space of a Week at the end of each of those Prorogations the four Gentlemen constantly neglecting to attend the Service of the House; the Assembly was put an end to by Dissolution to the great Damage of the Province.

I think it would not be just, should I neglect to acquaint the World with the Names of those abdicating Gentlemen, their Conduct, since sufficiently convinces us, what Motive occasioned their Desertion, and as those Gentlemen this present Assembly moved to have the Thanks of the House for the Service done their Country, by their Abdication. I imagine (notwithstanding Edition: current; Page: [891] the House was not so kind as to comply with their Desires) that I cannot offer a more pleasing Incense to the vanity of the illustrious Patriots; and so without any kind of Apology, I inform our Readers they were, John Hogson, Esq; the present Speaker, Colonel Benjamin Hill, Mr. John Blount, and Colonel Benjamin Peyton. The Reasons which induced those Gentlemen to such Conduct were notoriously known to proceed from Mr. Chief Justice, that Gentleman was acquainted, that Articles of Complaint would be exhibited against him, for Male Administrations in his office, and he plainly foresaw that if there should be at that Time a House, a strict Inquiry would be made into his Conduct, which he was well convinced would not bear a nice Scrutiny, and that there was no Way so effectual to prevent the Danger he was exposed to, as breaking the House, which could not be effected but by perswading those Gentlemen to Abdicate: This is Evident to any one, who considers the Correspondence the Chief Justice kept with those Gentlemen in the Time of their Desertion, and more especially from a very remarkable Letter sent from the Chief Justice, to the now Speaker in their last Retreat, which Letter for the Elegance of it’s Stile, deserves to be handed down to Posterity with great Care and Circumspection; but as we have not been so happy as to peruse that extraordinary Epistle, we can only communicate the Substance of it, as we received the same, from one of those abdicating Gentlemen; “Sir, the Assembly is Dissolved and the Members sent to the Devil, tantarararo, tantwive, tantwive.” If our Readers will consider this Correspondence, & how steadily those Gentlemen have since adherred to the Chief Justice’s Interest in the Affair of the Articles, exhibited against him, they will not think, those Gentlemen unjustly charged with deserting the Service of their Country at that Time with intent to screen the said Chief Justice from a deserved Publick Censure. Immediately after the Dissolution of the last Assembly, his Excellency the Governour, was pleased to issue Writs for Electing Members for a new Assembly; We imagine it cannot supprize any judicious Persons, that the Articles of Complaint, against Mr. Chief Justice Smith should miscarry, when he shall be acquainted with the great Expence and Diligence of that Gentleman to get his Friends into the House, he work’d upon the Hopes, the Fears and the Avarice of the Electors to gain his Point, every Election throughout the whole Province was more or less influenced by that Gentleman or his Friend: It is indeed much greater Cause of wonder, how there came to be so great a Minority as was in that House, and that in so great a Defection from the Interest of their Edition: current; Page: [892] Country, and notwithstanding so powerful, so assiduous an Interest carried on by that Gentleman and his Friends at the last Election, with so much Profuseness and Extravagance, so many Gentlemen should obtain Seats in that House, contrary to the Expectations and Designs of himself and his Friends. And that notwithstanding all Mr. Chief Justice, his Assiduity and Expence at Newbern, all his Perswasions and Promises of passing such favourite Bills as those, he depended upon were most Interested in, that after this, this very Assembly, which he flatter’d himself he had moulded to his Wishes, should refuse to Vote the Articles against him, false, or him Innocent and Upright, contrary to the Motion of his securer Friends in that House, and his own Expectations, and that those his own Friends, should not reject the Articles against him, but only reject the Evidence and should unfortunately leave those Articles so much his dread, upon their Journals, still subject to a further Examination and Inquiry.

We shall now proceed to the Journals of the Assembly as far as relates to the Subject of this Narrative.

Feb. 11, 1739 Mr. Benjamin Peyton moved this House, as Mr. Chief Justice Smith was the last Assembly if they had sat, to have been Charged with several Crimes and Misdemeanors, and they were not yet produced to this House, that they might be produced immediately, or the said Chief Justice might be declared a just and upright Judge, upon which Sir Richard Everard Baronet one of the Members of this House charged the said Chief Justice with high Crimes and Misdemeanors, and was seconded by Mr. Samuel Swann, and pray’d leave to exhibit Articles to that purpose against him, and moved this House to have Leave till Wednesday to bring in the said Articles, which was accordingly granted. Vera Copia1 Test William Heritage Clerke Dom Bur And a Warrant issue Sign’d by Mr. Speaker to bring all Persons, Papers and Records before them, to enable them to make good their said Articles.

True Copy, William Heritage Cl. Dom. Bur.

Sir Richard Everard moved this House, as he was ordered to draw the Articles against the Honourable William Smith, Esq. Chief Justice, that Mr. Maurice Moore, might assist therein, and that they might withdraw from the Service of the House, till Tomorrow Morning to prepare Edition: current; Page: [893] the said Articles: Ordered, that they have Leave to withdraw themselves Accordingly.

We aprehend it will be proper for the clearer Understanding of the present Controversy for us to make our Observations upon the Proceedings as they passed in the House, Day by Day, rather then to Observe upon the whole at once, which may possibly render them confused and intricate so that we may unfortunately by that Means disappoint the World.

On Monday Feb. 11th Mr. Benjamin Peyton Member for the County of Beaufort, made the Motion aforementioned, upon which ensued a very warm Debate, in which the Gentlemen, who were concerned in the Articles, seemed to decline the producing them to the House, at that Juncture for Reasons very plain and obvious, but the Gentlemen on the other Side tumultuously insisting that the Chief Justice should be voted innocent and upright, notwithstanding no Accusation then lay against him, and Mr. Speaker being very forward to put the Question, which he often during the Debate stated thus, Viz Whether Mr. Chief Justice Smith should not be declared by the House an impartial and upright Judge, and that he should receive the Thanks of the House for his good Services? It was then thought high Time to put a stop to such extravagant Proceedings, and since Argument and Reason, had been found ineffectual, to have recourse to some other Method, which induced Sir Richard Everard Baronet to rise up and accuse the said Chief Justice of high Crimes & Misdemeanors, and to pray a sufficient Time might be granted to exhibit Articles for that purpose to the House, and he was seconded by Mr. Samuel Swann. The Chief Justice’s Friends, who did not apprehend such a Consequence would proceed from Mr. Peyton’s Motion, were very much Alarm’d thereat, and they knew that nothing could save their Friend, but straitning the Gentlemen who were to produce the Articles, as to Time, upon which those Gentlemen insisted that they might be produced the next Morning, which occasioned another Debate, and the House were told that it looked as if they had no real Design to give their Country any Relief as to the Matters which might be contained in the Articles, since they seemed so desirous to Contract the Time, that the Articles ought to be well considered before they appeared in the House, and that in the like Cases at home, sufficient Time was never deny’d; at last Mr. Speaker put the Question, If the Gentlemen should be allowed Time till Saturday, to prepare and bring in their Articles? which was carried in Edition: current; Page: [894] the Negative, but no notice is taken of this Division in the Journals of the House, and as many other Things are neglected in the course of this Proceeding, we shall upon every Division which happened upon any Question, relating to the Affair in Hand, constantly set down the Names of the Persons who Voted for and against the Question.

For the said Question. Against the Question.
Col. Maurice Moore Mr. Thomas Loowick
Mr. James Castelaw Collector of Port Beaufort.
Mr. Thomas Bryan Mr. George Robers
Mr. John Brown Mr. George Bould
Mr. Simon Alderson Mr. Benjamin Peyton
Mr. John Banbury Mr. Richard Rigby
Mr. John Starkey Mr. Joseph Tart
Mr. William Brice Mr. John Blount
Mr. Edmund Smithwick Col. Benjamin Hill
Mr. William Gardiner Doct. Abra Blackall Deputy
Mr. Samuel Swann Post-Master.
Mr. John Swann Mr. James Cravin
Sir. Rich Everard Bar. Clerk of the Gen. Court
Mr. Arthur Mabson Mr. Walton
Mr. Samuel Sinclair Col. Macrora Scarbow
Mr. William Bertram Mr. Carruthers
John Montgomery Esq; His Majesty’s Atty. Gen. Mr. James Sumner
Mr. Tho. Pendilton
Mr. Joseph Sutton Col. Tho. Hunter
Mr. Joshua Long Mr. David Bayly
Mr. William Relf
Mr. John Caron
Mr. Jacob Carrow
Mr. Leary
Mr. Thomas Louther.

The Question thus carried against allowing Time till Saturday, the House was at last prevailed with to grant Time till Wednesday. Soon after the House adjourned, Sir Richard Everard and Mr. Samuel Swann waited upon the Speaker, with a List of the Persons, Records, and Papers which were wanting as Proofs Edition: current; Page: [895] of the Articles. Mr. Speaker declared after he had perused the Lists he could not, nor would not grant his Warrant for every Thing contained in the said Lists, but that he would for the Persons therein named, and that he would the next Day ask the Opinion of the House thereupon, and Mr. Speaker returned the Lists, which were the next Day laid before the House by Sir Richard Everard, as appears by the following Transcript of the Journals.

Tuesday Feb. 12, 1739 Sir Richard Everard Bart gave in a List to this House of the following Persons necessary for Evidences, and pray’d they might be Summoned to make good the Articles against the Honourable William Smith Esq. Chief Justice, viz.

William Dudley of Onslow County.
Cornelius Harnet, Esq; Sheriff of New Hanover County.
Samuel Bridgin of New Hanover.
Rufus Marsden Merchant in Newton.
Daniel Dunbibin Merchant in Newton.
Mr. Benjamin Wheatly of New Hanover.
Mr. John Smithers, Dep. Sheriff of New Hanover County.
Thomas Morphy } of Craven County
William Tunnielif
Robert Pitts
Robert Kirkland
James Kieth

And also a List of Persons and Copies of Records wanting from Bath, Bertie, Chowan and Edenton, in the Articles of Accusation of high Crimes and Misdemeanors against the Honorable William Smith, Esq. Chief Justice of North Carolina, to be sent for, by the Speaker’s Warrant, Viz.

Copies of the Venires2 and Pannels since Mr. Smith was Chief Justice, Copies of the four Writs for Executing the Criminals at Edenton signed by the Chief Justice, Copy of Mr. Smith’s Commission as Chief Justice, Copy of the Commissions of Grand Sessions, and Commissions Si non Omnes.3 (If any) Copy of the Record of Mr. Dawson’s contempt about Edition: current; Page: [896] Trotter July 1737. ditto concerning the Presentment of John Boude, March 1736. Diddo of Robert Calahorn, Andrew Conner and others at Bath August 1739. Copy of the Execution in the Case of Bridgin against Fullwood, ditto Copy of the Indictment against Kelly for forcible entry into Mr. Anderson’s Land, and Copies in the two Cases per Anthony Booth, ditto in the Case of William Dudley, against William Crosby for Assault, Robert Forster, Esq. Joseph Anderson, Esq. Thomas Jones Attorney at law, Orlando Champion of Chowan, Robert Calahorn and Andrew Conner of Bath Town, James Kelly of Edenton, Anthony Booth of Mr. Duckenfield’s Plantation in Bertie County, William Macky late of Edenton but now of Bertie County.

The House notwithstanding the List given in as aforesaid, gave no other Directions to Mr. Speaker concerning the same, nor does any Order of that Day appear upon the Journal concerning them, neither did Mr. Speaker deliver his Warrant for any of the Persons, Records or Papers mentioned in those Lists, until Wednesday the Day appointed for Exhibiting the Articles. And then only for some of the Persons desired, and not for any Papers or Records, notwithstanding the repeated Applications to him for the same.

It cannot be deny’d that the whole Conduct of the Speaker was such as plainly shewed how much he was interested in the safety of Mr. Chief Justice at that Time, tho’ he has heretofore more than once deceived, betray’d, and by solemn Oath has conspir’d with others, (per fac et nefas4) to destroy the said Chief Justice, notwithstanding at that very Juncture he was receiving distinguishing Marks of that Gentleman’s grace and favour; Mr. Speaker’s Warrant I have mentioned (an exact Copy of which is hereafter Inserted) is attended with a remarkable Circumstance as to it’s Date, it being dated Feb. 10th 1739, the Day before Mr. Peyton’s Motion; and consequently before any Charge against the Chief Justice was moved for in the House, the Preamble of the Warrant suggests that was granted the very Day the Charge of high Crimes and Misdemeanors against the Chief Justice was moved in the House, by Sir. Richard Everard and Mr. Samuel Swann; whereas in fact, the said Charge was made on Monday the 11th of Feb and not on Sunday the 10th as the Speaker in his Warrant wou’d suggest, neither was the Warrant (notwithstanding it’s Date,) ever seen by any of the Gentlemen who were Edition: current; Page: [897] for the Articles, until Wednesday the 13th, the very same Time the Articles were exhibited to the House, when Mr. Speaker delivered that Warrant; and another unsigned Warrant, for some Persons in Craven County to the House, which Warrants were directed to no Person.

North-Carolina, ss. Whereas Sir Richard Everard, Baronet, and Mr. Samuel Swann have the Day of the Date hereof before this House, charged the Hon. William Smith, Esq; Chief Justice of this Province, with high Crimes and Misdemeanors, and have in order to make good their said Charge moved this House, that the Speaker Issue his Warrant to Summons Persons &c These are therefore to Will, Require, and Command you to Summons William Dudley of Onslow County, Cornelius Harnett Esq; Sheriff of New Hanover County, Samuel Brigdin of New-Hanover, Gentleman, Rufus Marsden and Daniel Dunbibin Merchants of Newton, Mr. Benjamin Wheatly of New Hanover, John Smithers Deputy Sheriff of New Hanover, to attend this House on Wednesday next the thirteenth Instant at Newbern. Herein fail not at your Peril, and for so doing this shall be your Warrant. Given under my Hand at Newbern the Tenth Day of Feb 1739. By Order.

John Hodgson, Speaker.

Upon reading this Warrant, would any Man alive imagine New Hanover County, to be One Hundred Miles from Newbern, and the Persons within that Warrant contained to, live at so great a distance from Newbern, as in fact they do? Is it not wonderfully consistent with honour and uprightness of the House of Burgesses, to compel Gentlemen to accuse the Chief Justice of high Crimes and Misdemeanors in the Administration of his Office; and then to limit them to the space of three Days, to prepare and exhibit Articles which contained ten Sheets of Paper; and to prevent them as far as was in their Power, from obtaining one Proof to support their Charge, by their obstinate Resolution of having the Articles the very Day they were exhibited, to be fully and substantially proved, they declared they wou’d not be satisfied with such Proof, as would be sufficient to induce a Grand Jury to find a Billa Vera5 upon an Indictment, because they were confident that such Evidence, notwithstanding all obstacles cou’d be produced, but wou’d have such Evidence as should be sufficient for a petit Jury to Convict upon, Edition: current; Page: [898] which they imagined as Circumstances then stood with the Gentlemen who produced the Articles, were not to be had, tho’ many of them afterwards owned that they were perswaded if Time had been allowed, such Evidence cou’d have been produced to have supported the Charge; nay the Gentlemen of that side the Question have made further discoveries of the Motives which induced them to such unaccountable Conduct, as shall be shewn in it’s proper Place. Take the whole Affair relating to summoning Evidences, and to produce Records and Papers before the House, to support the high and heinous Accusations exhibited against the Chief Justice, and consider it in all it’s Progressions, Mr. Speaker’s Conduct in relation to the Warrants, the Order of the House of Feb. 11th, two Days before the Exhibition of the Articles, for Mr. Speaker to Issue his Warrants to bring Persons, Papers and Records before the House, that Order intimates Time for such Things to be done in; Mr. Speaker’s Warrant commands Persons to be summoned to appear before the House on Wednesday, who most of them lived upwards of one Hundred Miles from the Place where the Assembly sat, and supposing the Date of that Warrant to be right; and a Messenger immediately posted away to Execute it, was there a possibility of performing that Service within the Time expressed in that Warrant? No one will presume there was. But from the Time Mr. Speaker produced his Warrant to the Time the Articles were exhibited to the House, no Man cou’d have gone one Mile. The Gentlemen accusers of the Chief Justice were ordered to lay before the House Articles for that purpose on Wednesday the 13, but no Part of the Order directed the Articles to be then proved, nor could any one in his Senses imagine it was intended; the very Order plainly intimates the contrary, it directs that the Speaker Issue his Warrant for Persons, Records and Papers, to make good the said Charge; the House thereby granted Time for such Proofs; and by what Art and Management, they were perswaded afterwards to insist upon Proof on Wednesday, shall appear before we leave this Subject.

Wednesday 13. 1739. Sir Richard Everard pursuant to his Motion of Monday last, laid before this House the several Articles against the Hon. William Smith, Esq; Chief Justice; which he read in his Place, as follows, Viz.

To his Excellency Gabriel Johnston, Esq; Governor and Commander in Chief of His Majesty’s Province of North Carolina in Council.

Edition: current; Page: [899]

Articles of Complaint against William Smith, Esq; Chief Justice of the Province of North Carolina by the General Assembly of the said Province, as well in their own Name, as for and in the Name and on the behalf of all His Majesty’s Leige People of this Province for divers high Crimes and Misdemeanors done and committed by him the said William Smith in the Execution of his said Office.

1. That he the said William Smith at sundry Times since his Admission into the said Office of Chief Justice, hath endeavour’d in a most violent, arbitrary and illegal Manner, to subvert the Laws both of Great Britain and this Province, made for the preservation of the Lives, Liberties and Estates of His Majesty’s Leige Subjects living and residing within the same. And also by divers others illegal, violent and arbitrary Proceedings, doth frequently disturb the Peace and good Order of this His Majesty’s Government; and all these Things he hath openly and avowedly declared, acted and done, not only in Words, but premediately and deliberately, in his Opinions, Judgment, Practices, and Actions contrary to his Duty, and in manifest Violation of his Oaths, and Breach and Derogation of the great and high Trust reposed in him

2. And the said General Assembly do more particularly and expresly Charge that by an Act of the General Assembly of this Province passed the 23d Day of June 1723 entitled, An Act to provide indifferent Jurymen in all Cases civil and criminal, it is Enacted among other Things, that all Jurors should be drawn by balloting according to the Method and Rules by the Act prescribed, and that no Person should be a Juryman but such whose Names were written in the List thereunto annexed, or such as should then after be added by Authority of Assembly; and every Judge, Justice, and Officer of the said General Court is required to take an Oath for the due observance of the said Act, and the Penalty of One Hundred Pounds thereby annexed for each default, in non observance of the same, as by the said Act, to which they refer, doth more fully appear; and the said Act hath been strictly observed and put in Execution by all the Justices of the General Court of this Province from the Time of it’s passing until the said William Smith acted as Chief Justice. That pursuant to said Act, the said William Smith Chief Justice, upon his entering into the said Office took the Oath thereby enjoined for the due Observance of the said Act: Nevertheless the said Chief Justice having no Regard to the said Act, nor to his solemn Oath which he took on the Holy Evangelist of Almighty God for the due Observance thereof, nor to the Penalty Edition: current; Page: [900] thereby inflicted for each default for Non-observance of the same, hath for divers Years last past in manifest and open Violation of the said Act, and by, and of his own mere Will, contrary to the Practice of all former Justices, caused Jurors to be summoned by Venire, without ever drawing the said Jurors or any of them by way of Lot or Ballot, either before the Venire issued, or after the Jurors were Summoned, returned and appeared, as by the said Act is required, by Means of which illegal Proceeding of the said Chief Justice; all the Care taken by the Ligislature for preventing Corruptions of Officers in packing of Jurors, are entirely obstructed and defeated. Divers Criminals have been illegally convicted, condemned and Executed. All Judgments in civil Cases after Verdict liable to be reversed, and the Lives, Liberties, Properties, and Estates of His Majesty’s Subjects in this Province continually exposed to much Hazard and Danger.

3. That the said Chief Justice being appointed by his Excellency’s Commission of the 29th of July last to hold several Courts of Assizes, Oyer and Terminer, and General Goal delivery, at the several Towns of Bath, Newbern, and Newton, held all the said Courts accordingly at the several Times appointed, but never took any Oath for the due Execution of the said Commission, nor the Oaths to His Majesty at any Time since the Issuing the said Commission as by Law required, tho’ it is now many Months since. Thus sometimes neither regarding the Oaths he has taken, nor the Statutes enjoining the Oaths to be taken, nor the Penalty of Five Hundred Pounds Sterling thereby inflicted for not taking the same.

4. That the said Chief Justice assuming to himself an equal Power and Authority with His Majesty’s Ancient Court of King’s Bench at Westminster, when Criminals are convicted of capital Offenses without waiting for any Warrant from the Governor or Commander in Chief for the Time being, doth cause Execution to be done on the Bodies of such Offenders by his own Orders and Rules of Court and Precept, thereby depriving his Excellency the Governor of all Opportunities of showing His Majesty’s Grace and Pardon, to such Persons as might happen to be real Objects of Mercy and which your Excellency is impower’d to do by His most gracious Commission and Instructions.

5. That one John Powel at a Court of Grand Sessions held at Edenton the last Tuesday in July 1736 being Convicted of Murther in poisoning Edition: current; Page: [901] his Wife, Sentence of Death was awarded against him, and he was accordingly hung up by the Neck at the usual Place of Execution, but the said Chief Justice having caused him to be cut down while he was yet alive, soon afterwards, notwithstanding Judgment, and in Part executed as above said, and without ever any Pardon being granted to said Powel; did constitute and appoint the said Powel to be Cryer of the General Court at Edenton; and he continued to hold the said Office till July last.

6. And for as much as by the Great Charter passed of King Henry Third, and at divers Times since confirmed, its among other Things Ordained, that a Freeman shall not be Amerced for a small Fault, but after the manner of the Fault: Yet the said Chief Justice hath on the most trivial and light Occasions, contrary to the said Charter, and divers other the Laws of the Kingdom of Great Britain, frequently imposed excessive Fines on divers of His Majesty’s good Subjects in the Province, in no wise adaquate to the Offence, and Imprisoned them till the same were paid, and that in a most illegal and arbitrary Manner, without any Bill of Indictment found, or Information fil’d, by His Majesty’s Attorney General, or any due Process or Trial at Law, or the Parties ever being legally convicted of such Offences by the Oath of twelve Jurors, contrary like wise to the Statute of Magna Charta, which expressly enjoins that no Man shall be taken, imprison’d or condemn’d but by lawful Judgment of his Peers, or by the Law of the Land, and this some Times, under pretence, that such Offences were Contempts of Court; altho’ the said General Assembly are inform’d that the Offences for which the said Persons were so illegally Fined and Imprisoned were in themselves no Crimes or Offences that could subject the Parties to any Criminal Prosecutions, and that if they were so, they were not committed in the Presence, or within View of the said Court, or against the process of the same; and the said General Assembly in further Maintainance of their Allegations above said, do expresly Charge that one John Dawson a Member of the General Assembly, being summoned to serve as Petit Juryman at the General Court held at Edenton the last Tuesday in July 1737, by one James Trotter a common Bailif or Deputy Marshal, told the said Deputy Marshal that he need not have given himself the trouble, for that he had been summoned already, or was obliged to attend, whereupon the said Trotter told the said Dawson, that he need not expect any Favour from him, the said Dawson reply’d he did not, and further told the said Trotter, Edition: current; Page: [902] that if he the said Trotter had any Trump Cards in his Hand, to play them for he (meaning himself) might chance one Time or other to get Jack and Ace in his Hand, and should make Use of them; and the said Chief Justice being informed of the said Dawson’s having spoken and uttered such Words out of Court, the Court being then adjourned, did the next Day without any legal Tryal set a Fine on the said Dawson of Ten Pounds Proclamation Money, and ordered him to be Committed to Gaol without Bail or Mainprise till he should pay the same, and to find good Security for his the said Dawson’s good Behaviour for a Year and a Day, as by Record, Minutes, or Docket of the same Court doth appear; and the said Dawson after having lain about five Days in Gaol paid the said Ten Pounds Proclamation Money, or Value thereof accordingly: Altho’ the said General Assembly do conceive that the Words so spoken are frivolous and senceless, and in Case any Indictment had been prefer’d against the said Dawson for the same, they cou’d not by the most far fetched Innuendo have been strained to Mean or Signify any Thing, and was a very small Fault, if any, nor can the same be any Ways deemed (as they conceive) to be a Contempt offered to the Court.

7. That the said Chief Justice at a Court of Oyer and Terminer held at Newbern the first Tuesday in September 1739, did set a Fine upon one John Bryan one of His Majesty’s Justices of the Peace for the County of Craven, of Ten Pounds Proclamation Money for a supposed Misdemeanor, without ever the said Bryan’s being called to Answer the same, either by Presentment, Indictment, or any due Process of Law whatsoever; and when one Mr. Heritage an Attorney moved the said Chief Justice, that he would be pleased at least to send for the said Bryan to know if he had any Thing to say, the said Chief Justice refused it, saying, do you know my Sentiments Sir, better than I do my self? I Fine him the said Bryan Ten Pounds Proclamation Money, to enlighten the Gentleman’s Understanding, and did afterwards issue Process accordingly, and levied the Sum of Seventy five Pounds this Currency on the said Bryan.

8. The said General Assembly further Charge and Alledge that by An Act entitled An Act concerning Fees and Officers, pass’d the 19 of October 1722 they did Provide and Establish sufficient Fees for the Support and Dignity of the said Office of Chief Justice; and by another Act entitled An Act to ascertain Officers Fees pass’d before that Time (to wit) the 19th Day of January 1715, they did likewise provide sufficient Edition: current; Page: [903] Fees for the Maintenance and Support of a Clerk of the said Court, notwithstanding which the said General Assembly do expresly Charge that the said William Smith Chief Justice, hath oft Times in a most illegal and arbitrary Manner, extorted from divers of His Majesty’s Subjects within this Colony, most extravagant and exorbitant Fees, where no Fees are at all due by Law, and at other Times doth exact and extort from His said Majesty’s Subjects much greater Fees than ever were allowed or established, in manifest violation and defiance of the several Acts of Assembly made for ascertaining of Officers Fees, and to the grievous Oppression of His Majesty’s Subjects; and the said General Assembly in further Maintenance of this their Charge, do particularly and expresly Charge and Alledge that one James Kelly sometime in the Month of March 1739 at the General Court held at Edenton, being indicted for a forcible entry into the Lands and Tenements of Joseph Anderson, Mr. Vernon Attorney for the Defendant moved to quash the Indictment for some Defect found therein, and the said Indictment was quashed by the said Chief Justice accordingly, nevertheless the said Chief Justice issued an Execution for Twenty two Pounds ten Shillings Proclamation Money for Fees pretended by him to be due on the said Indictment, altho’ there were no Fees whatsoever due on that Account that the said General Assembly ever knew or heard of, save Fifty Shillings to the Attorney General, and three Shillings and six Pence to the Clerk of the Crown. And the said General Assembly further Charge that one John Boude Gentleman, at a General Court held at Edenton the last Tuesday in March 1736 was presented for being the Father of a Bastard Child; but it appearing to the Court that the said Boude had comply’d with the Laws of this Province by indemnifying the Parish, and paying the Fine by Law inflicted there were no further Proceedings had upon the said Presentment, nevertheless the said William Smith, Chief Justice did then exact and extort from the said Boude, Twenty-six Pounds odd Shillings current Bills of the said Province, for Fees pretended to be due on such a bare Presentment, altho’ in Truth there are no Fees due to the said Chief Justice on any such Account, as they conceive; that the said Chief Justice where one Indictment has been brought for a Riot against divers, doth exact and extort from each Defendant the whole Fees pretended to be due to him on the said Indictment, and tho’ the whole Fees he pretended to Claim for himself and Clerk, is as he says, Twenty two Pounds Eight Shillings, yet the said Chief Justice exacts Twenty-two Pounds Eight Shillings from Edition: current; Page: [904] each Defendant, altho’ in Truth there is not one Penny due to the Chief Justice, and but Six Shillings to the Clerk; and the said General Assembly do particularly Charge that the said Chief Justice at a Court of Oyer and Terminer held at Bath Town in August last upon an Indictment for a Riot against Andrew Conner, Robert Calahorn and others, did exact and extort from each of the Defendants Conner and Calahorn Twenty two Pounds Eight Shillings, and Process upon the same Indictment Issued against others for the like Sum, so that each Defendant is made chargeable with the whole Twenty two Pounds Eight Shillings, altho’ as they are ready to prove, there are no Fees whatsoever due or allowed to the Chief Justice in Criminal Cases, but he takes and exacts the same, and what he thinks fit of his own mere arbritrary Will.

9. And the said Assembly in further Maintenance of that Part of this general Charge against the said Chief Justice for exacting and extorting more and greater Fees than ever were established and allowed by Law, do particularly Charge and Allege that one Anthony Booth being Indebted to {blank} in the sum of Two Pounds Five Shillings, and to one {blank} in the Sum of Two Pounds Ten Shillings, both this Country Currency, sometime in the Month of {blank} 173{blank}. The said Chief Justice sent two Executions against the said Defendant for Seventy Pounds and upwards, including the said original Debts, which both together made but Four Pounds Fifteen Shillings, and the Defendant having no Money to satisfy for the said Debts and Fees, was obliged to deliver to the Marshal four Thousand Pounds of good fresh Beef in satisfaction of the Debts and Charges aforesaid, tho’ the said Beef at that Time was worth One Hundred and Twenty Pounds computed at Three Pounds each Hundred weight.

10. That whenever any Capias6 Issues, altho’ the Defendant be never Arrested or Summoned, and without the Defendant being made Party in Court by giving Bail, or Appearance otherwise; yet nevertheless the said Chief Justice doth exact and extort from every Plaintif the Sum of Six Pounds Current Money of this Province, for Fees pretended to be due to himself and Clerk, whereas in Truth the whole Fees due to himself and Clerk do amount to no more than Twenty Shillings and seven Edition: current; Page: [905] Pence, as appears by the said Acts, for ascertaining Officers Fees, and which according to the said Chief Justice’s own Estimation of taking four for one for the difference of the Value of Money at that Time the Fees were first settled, could amount to no more than Two Pounds two Shillings and four Pence; and the said Chief Justice doth Ex Officio7 most frequently issue a Fieri Facias Capias ad Satisfaciendum,8 as he sees fit, without the Knowledge of, or Request made to him either by Plaintif or Defendant or either of their Attorneys: And the said General Assembly do particularly Charge that one Samuel Bridgin, sometime before October General Court 1738, took out a Writ against one Thomas Fulwood, but the Matter being made up between them, he proceeded no further therein, nor was any Declaration fil’d against the Defendant, yet the said Chief Justice did exact and extort from the said Bridgin the Sum of four Pounds eight Shillings and three Pence Proclamation Money for Fees pretended to be due to himself and Clerk, altho’ in Truth the whole Fees for the said Writ according to the Fee-Act could amount but to ten Shillings and seven Pence Proclamation Money; and the said Chief Justice without any request made by the Defendant or his Attorney under pretence of a non pros9 before any such judgment on a Non Pros was ever entered upon Record against him, did issue an Execution against the Plaintiff for the said four Pounds eight Shillings and three Pence Proclamation Money, and the Plaintif paid the Sum of seventeen Pounds thirteen Shillings this Currency, altho’ computing four for one according to the Chief Justice’s own Method of Computation, the whole Fees for the said Writ could amount to but two Pounds two Shillings and four Pence, that the Plaintiff on Payment of the said seventeen Pounds thirteen Shillings, had the Execution deliver’d up to him by the Marshal, which Execution he has ready to produce. That sometime after the said Chief Justice on his own mere Motion, issued another Execution against the Plaintif in the same Cause, for the like Edition: current; Page: [906] Sum of four Pounds eight Shillings and three Pence Proclamation Money, for which the Plaintif paid a second Time the like Sum of seventeen Pounds thirteen Shillings, and took Mr. James Craven the Chief Justice’s Clerk his Receipt for the same, as appears by the Receipt ready to be produced; and the said General Assembly are ready to produce many Instances of the like kind, not only of the said Chief Justice his exacting four Times more than his the said Chief Justice’s real due, but also of his issuing Executions over again, for the same Fees, after the same have been really paid sometimes to his Clerk, and at other Times into the said Chief Justice’s Hand.

11. That the said Chief Justice the better to colour his illegal Proceedings, doth always issue his Executions on his suppos’d non pros’s in this Form (mutatis mutandis10) North Carolina ss. George the Second by the Grace of God of Great Britian, &c. To the Provost Marshal of our said Province. Greeting. “We Command you to take Samuel Bridgin of Cape Fear, so that you have him before our Justices at our next General Court to be holden for our said Province at the Court-House at Edenton on the last Tuesday in March next, to satisfy four Pounds eight Shillings and three Pence Proclamation Money, which in our said Court on the last Tuesday in October last was Adjudged and Taxed for his Cost in his Suit against Thomas Fullwood, wherein he I would no further prosecute, whereof he is Convicted and have you then and there this Writ with your own Fees. Witness William Smith, Esq; our Chief Justice of our said Province at Edenton the 15th Day of November, Annoque Domins {Domini?}11 1738, W. Smith.” Whereby the said Chief Justice doth artfully avoid saying to satisfy to the said Thomas Fullwood, because in truth the said Defendant Thomas Fullwood, who is supposed to apply for this non pros, is to have no Part of them paid to him, to reimburse him the Fees he hath paid his Attorney; for the Chief Justice keeps all to himself; yet in the other Part of the Execution, it seems as if such Fees belonged to the Defendant, by saying for his Costs in his suit against Thomas Fullwood, but there is no Antecedent to be found in the Relative, his, in all the precedent Part of the Writ, unless it be Samuel Bridgin the Plaintif, and it cannot be Edition: current; Page: [907] presumed that Samuel Bridgin should be taken into Custody to satisfy Samuel Bridgin. And the General Assembly do not take Occasion to criticise on this Proceeding for want of due Form, or as a jeosail, slip, or mistake of the Clerk, but it is contrived on set purpose by the said Chief Justice to colour his own illegal Exactions under pretence of doing Justice to the Defendant, who at the same Time never receives any Part of these Fees, and over and besides this, the Chief Justice takes eleven Shillings and three Pence Proclamation Money, for Fees for Execution on this non pros for himself and Clerk, tho’ there is but five Shillings and six Pence due to both and no more; in which particular Fee they conceive the Chief Justice is very modest, exacting very little more than Cent per Cent more than is due.

12. That sometime in December 1734 one William Dudley apply’d to the said Chief Justice for a Warrant against one William Crosby for an Assault, which the said Chief Justice, granted without demanding any Fee, nevertheless the said Chief Justice by a certain Act entitled An Act for reviving An Act entitled an additional Act to the Act for Tryal of small and mean Causes, having procured himself to be invested with the same Power as two Justices of the Peace for trying small and mean Causes, the said Chief Justice without ever demanding any Fee of the said Dudley for the said Warrant, or summoning him to shew Cause why he did not pay it, issued an Execution against the said Dudley for eight Pounds seventeen Shillings and six Pence pretended to be due to him for the Fees of the Warrant, altho’ at the said General Assembly apprehended there is but ten Shillings this Currency due to the said Chief Justice for the said Warrant.

13. That the said Chief Justice doth contrary to the Duty of his Office execute an Officium merum et promotum12 and doth instigate, promote, prosecute and carry on divers Suits and Prosecutions both civil and criminal Causes against such Persons who have any ways offended him in opposing his violent and arbitrary Measures, and the said General Assembly in Maintenance and Support of this their Charge, do particularly Charge and Alledge that Sir Richard Everard Baronet, Son of Sir Richard Everard Baronet, heretofore Governor of this Province, being a Member of the General Assembly, and having frequently mentioned and Edition: current; Page: [908] taken notice of the illegal and arbitrary Proceeding of the said Chief Justice, the said Chief Justice sometime in the Month of June 1738, did fill up, or cause to be fill’d up a Writ of Capias against the said Sir Richard Everard, Baronet, by the Chief Justice philus Pugh of Nancemon in Virginia Merchant, without the Order or Knowledge of the said Pugh or his Attorney, the Chief Justice having before threatened the said Sir Richard Everard.

14. That one James Castelaw a Member of the General Assembly, and now one of the Justices of Bertie Court, being in Company with the said Chief Justice on the 27th Day of July 1737 and the said Castelaw having been from Time to Time made acquainted with the violent, and arbitrary Proceedings of the said Chief Justice, did in freedom tell him the said Chief Justice that the many Hardships and Grievances the People of the Province labour’d under, wou’d at length put them either under a necessity of rebelling and running away, and leaving all their Lands and Houses behind them; whereupon the said Chief Justice in a violent Passion said, and swore by God, I wish you wou’d that is what we want; thereby intimating that he wou’d be glad to see the People drove to such Extremities as to quit their Estates or forfeit the same for Treason, which indeed as they conceive wou’d be no small Advantage and Benefit to the Chief Justice.

15. That the Chief Justice is a Person of a most violent, passionate, and revengeful Temper and Behaviour, and instead of endeavouring to curb or restrain his Passions, does on all Occasions give the utmost loose to such his Passions, and doth frequently and most outrageously Insult and Abuse divers Persons of Credit and Distruction with most opprobrious Names, and abusive Language, as well in open Court sitting in the Seat of Justice, as without; and the said General Assembly do particularly Charge that one Arthur Mabson being a Member of the General Assembly, at a General Court held at Edenton on the last Tuesday in July 1739, had Articles exhibited against him for a certain Contempt offered to the said Court by the said Mabson, but the said Mabson appearing and being examined was found by the said Chief Justice to be no ways Guilty of any Contempt whatsoever, and was accordingly acquitted by the said Chief Justice, whereupon the said Mabson being fairly acquited of the said Contempt as abovesaid scrupled to pay the Fees of the Court, and a dispute between the Attorneys arising, whether the said Mabson ought Edition: current; Page: [909] to pay Costs, the said Chief Justice without any Affront or Indignity offer’d to him by the said Mabson, did in a most violent manner Villify and Abuse the said Mabson, calling him Rogue, Villian, notorious Rogue, and treacherous Villian, altho’ the said Mabson is well known to be a worthy Man, a Person of very good Repute, and a Man of a good Estate.

16. That the said William Smith having been advanced to be Chief Justice of this Province and President of His Majesty’s Council, ought to be a Person of Virtue, and of a discreat, sober and grave Conversation, giving good example to others, & to Demean himself according to the Dignity of his Office, yet nevertheless the said Chief Justice by the notorious Immorality of his Life, and his constant prophane Cursing and Swearing, doth daily offer indignity to Almighty God, and give just Occasion of great Scandal and Offence.

17. That all the Articles aforegoing are only a few Instances out of many of the said Chief Justice his violent, illegal and arbitrary Proceedings, for his Exactions and Extortions are more burthensome than the General Tax of the whole Province, every Corner of the Country is fill’d with his Oppressions, and all the People cry aloud for Justice from your Excellency’s Hands.

And the said General Assembly do most humbly pray your Excellency that the said Chief Justice may be immediately put to Answer all and singular the said Articles of Complaint, and that a reasonable Time during this present Sessions of Assembly, may be appointed by your Excellency for the said General Assembly to make good their said several Charges against the said Chief Justice, and that if the said Chief Justice shall confess the same or be found Guilty thereof, that then your Excellency will be pleased to cause the said Chief Justice to be immediately and from thenceforth suspended from all his Offices and Imployments, until His Majesty’s Pleasure be farther known thereupon, and in so doing, your Excellency will remove him who has been the Source, Spring, and chief Author of most of the Differences and Disturbances which have happened in Government since your Excellency’s arrival, do a most examplary Piece of Justic[e] both to the King and People, and restore Peace and Tranquility to the Province.

The General Assembly do further most humbly Request your Excellency that the said Chief Justice be in the mean Time sequestered from the Council Board pending the Debate and Examination of the said Edition: current; Page: [910] Articles, it being (as they conceive) contrary to natural Right and Justice that any Person should set and Vote in his own Case.

And the said General Assembly by Protection reserving to themselves the Liberty of exhibiting at any Time hereafter any other and further Articles of Complaint against the said Chief Justice, and of replying to any Answers, that he shall make thereon, and offering Proofs of the Premises, and to any other Articles to be by them hereafter exhibited against him, and of further explaining themselves upon all and every the same Articles of Complaint if need require.

After reading the said Articles the House resolved itself into a Committee of the whole House, to Debate on the said Articles, unanimously chose Mr. Thomas Hunter Chairman.

Mr. Speaker moved, and was seconded by Mr. Benjamin Hill, that the Articles exhibited against the Honourable William Smith, Esq; Chief Justice might be Debated, and that the Proofs of the same be produced immediately that the House might resolve whither the Articles exhibited are sufficiently proved to this House, for this House to Impeach the Chief Justice.

To which Mr. Samuel Swann objected, and was seconded by Sir Richard Everard.

And it was put to the Vote, and carried in the Affirmative of a Majority of ten Voices.

Thus far the Journal informs us. I shall add the Names of the Persons for and against the Speaker’s Motion, which being very dark and unintelligible, I shall endeavour presently to Explain.

For the Speaker’s Motion
John Hodgons, Esq Speak.
Mr. Tho. Lovick Collect of Port Beaufort Mr. James Craven, Clerk of the General Court.
Mr. George Roberts Mr. Walton
Mr. George Bould Col. Macrora Scarborough
Col. Benjamin Peyton Mr. James Sumner
Mr. Richard Rigby Col. Thomas Hunter
Mr. Joseph Tart Mr. Carruthers
Col. Benjamin Hill Mr. Thomas Pendilton
Mr. John Blount Mr. David Bayley
Doct. Abraham Blakal, Mr. William Relf
Deputy Post Master. Mr. John Caron
Mr. Leary Mr. Jacob Caron
Mr. Thomas Lowther Mr. Joseph Sutton
Mr. William Bestram Mr. Joshua Long.
Against the Speaker’s Motion
Col. Maurice Moore Mr. William Gardnier
Mr. James Castelaw Mr. Samuel Swann
Mr. Thomas Bryan Mr. John Swann
Mr. John Brown Sir Rich Everard, Bar.
Mr. Simon Anderson Mr. Arthur Mabson
Mr. John Banbury Mr. Samuel Sinclair
Mr. John Starkey John Montgomery Esq; His Majesty’s Attorney General.
Mr. William Brice
Mr. Edmund Smithwick

Could any Thing be more absurd to say no worse than this Motion of the Speaker’s, or more retrograde to the Sense of the House, if we may judge of their Sense from their Journals, he is directed by them to issue his Warrant to bring before the House, Persons, Papers, and Records, which he refused, and neglected to do, and yet this Gentleman and his worthy Friend Col. Benjamin Hill call for Proofs the Moment the Articles were read, and such Proofs too, as he said, should be sufficient to induce the House to Impeach the said Chief Justice, the first Words of an Impeachment mentioned in that House is from Mr. Speaker. The Articles exhibited against the Chief Justice were not Articles of Impeachment, they were Articles of Complaint for high Crimes and Misdemeanors committed by him in the Execution of his Office, the Gentlemen who exhibited them are still of Opinion they had sufficient cause to Complain of that Gentleman’s Conduct in his Office, his past Actions and Behaviour in that Station (as they thought) had rendered the Lives, Liberties and Fortunes of his Majesty’s Subjects in this Province, very precarious, they were certain the Facts alledged by them in their Articles were strictly true, and they never imagined that the Representative Body of the whole Province, would have laid them under any difficulties as to Time, Edition: current; Page: [912] and if the Chief Justice by his own Management, and the scandalous Arts of his Friends, is continued in that Station, and shall hereafter deviate from Law and his Duty, and oppress his Majesty’s Subjects of this Colony, it is those Gentlemen are to Answer for it, who were deluded by the Artifices of him and his Friends, or were corrupted by more substantial Motives from their Duty to the Public to prevent an impartial Enquiry into his Conduct.

And what hopes are to be conceived of that Gentleman’s further Uprighteness and Integrity in that Station may be easily determined, by considering the Nature of the Articles, and the Proofs brought to support them. The whole Conduct of Mr. Speaker and the rest of the Chief Justices Friend’s, was calculated only to give Mr. Smith’s Case a favourable Complection. Should it go home against him, they foresaw that an absolute refusal of Enquiry into his Conduct wou’d not be prudent, and to suffer a strict Enquiry into it would be attended with great Danger to him; in such a nice Affair, they thought the best Steps that could be taken was to call for the Articles when the Gentlemen engaged in that Affair were least aware of it, and to limit them as to Time, that they might fall short in their Proofs, Things would then look (they imagined) with a favourable Aspect, if they should be laid against Mr. Smith at home, no Body there might be acquainted with the little Circumstances attending the Affair, such as the Management of the several Elections, and of the Members afterwards, the Behaviour of the Speaker, and the distance of the Evidences from Newbern, and the scanty Allowance of Time to prepare and prove Articles of so great Concern and Importance to the Publick. Mr. John Blount moved that before the Articles were Proceeded upon the House might be cleared; to which Col. Maurice Moore objected saying that as the Proceedings of this Day being of the greatest Consequence to the Province, he could wish all the Inhabitants of the same were present to be Eye and Ear Witnesses of the Conduct of their Representatives, that they might be satisfied who were Friends and who Enemies to their Country, for which Reason he insisted the Doors might remain open, and that whoever pleas’d might come into the House, and hear the Debates, upon which the Door was left open. I shall now return to the Journal.

Then Sir Richard Everard Proceeded to Proof as follows, 1st to the 7th Article, and produced Mr. John Bryan and Mr. William Herritage Evidences to Support the said Article, and then moved for the Opinion of the House whether the said Article was proved sufficient to Impeach Edition: current; Page: [913] the said Chief Justice with the same. Mr. Speaker objected to the said Motion, and moved they might go through the Evidence of the whole Charge, and was seconded by Mr. Blackall: Which was put to the Vote and carried in the Affirmative.

Thus far from the Journal.

For the Speaker’s Motion.
John Hodgson, Esq; Speak. Col. Macrora Scarborough
Mr. Tho. Lovick, Colector of Port Beaufort. Mr. Carruthers
Mr. Tho. Pendilton
Mr. George Roberts Mr. David Bayley
Mr. George Bould Mr. William Relf
Mr. Richard Rigby Mr. John Caron
Col. Benjamin Peyton Mr. Jacob Caron
Col. Benjamin Hill Mr. Leary
Mr. John Blount Mr. Thomas Lowther
Doct. Abraham Blackall Deputy Post Master. Mr. Joseph Sutton
Mr. James Craven, Clerk of the General Court. Mr. Joshua Long
Against the Speaker’s Motion
Col. Maurice Moore Mr. Samuel Swann
James Castellaw Mr. John Swann
Mr. Theo. Bryan Sir. Rich Everard, Bart.
Mr. John Brown Mr. Samuel Sinclair
Mr. Simon Alderson Mr. James Sumner
Mr. John Banbury Mr. Walton
Mr. John Starkey Mr. Joseph Tart
Mr. William Brice Mr. William Bartram
Mr. Edmund Smithwick John Montgomery, Esq; His Majesty’s Attorney General.
Mr. William Gardiner
Mr. Arthur Mabson

It is necessary here to mention two Points of no small Consequence to the Articles, which were determined by the House with dividing, and of Edition: current; Page: [914] which no mention is made in the Journals, the first was a Motion of Sir Richard Everard’s to the House, seconded by Mr. Swann, that the Evidence which should be produced against the Chief Justice might be taken in writing, which was bore down by so great a Majority, that the Gentlemen who proposed the Question did not think proper to call for a Division upon it, the other was a Motion made to alter the Method of voting in the House, that upon any Question, the Names of the Members for and against the Question might be taken in writing, which was also refused by the House; these two Motions being determined as aforesaid, the Gentlemen who were for the Articles were under a necessity to take Minutes of the Examinations of the Evidences themselves, and it is from those Minutes that the Matters of fact in this Narrative as far as relates to the Articles are taken, and we assure the World that they are as near as may be exact as they were given in Testimoney to the House.

And whenever any Division of the House happned after that Determination upon any Question relating to the Articles, we constantly committed to writing the Names of the Members who Voted with us.

The seventh Article which thro’ Accident came to be the Subject of the first Enquiry was allowed by all Persons to be fully and substantially proved, and no one doubted but that the House would be of that Opinion which when Sir Richard Everard moved for, Mr. Speaker who well knew that if the House was of Opinion that any one Article was proved, they could not avoid charging the Chief Justice with the Articles so proved, objected against that Motion, and desired that the House would not give their Sense of the Evidences to each Articles seperately in it’s proper Course, but that they would suspend any Determination whatsoever until they had gone thro’ the whole Charge. This produced a warm Debate in the House, and upon the Question it was carried according to Mr. Speaker’s desire by the Majority of one Voice.

Mr. Speaker could have no other view in this Proposal of his but only to perplex the Understandings of the Members of the House by mixing such Articles which he knew were (as Affairs had been managed) difficulties to be proved, with such Articles as he was confident wou’d be fully proved, and that the Question at last might be reduced to this, (as in fact it was) whether the Proofs that were produced and heard to Support the said Articles were sufficient for this House to Impeach the said Chief Justice. That was the Question, and many of the Members who voted against the Articles Edition: current; Page: [915] afterwards owned that many of the Articles were sufficiently proved, but that the whole were not so well proved as might be expected in order to a Conviction; the small allowance of Time laid insuperable Difficulties upon the Gentlemen on the side of the Articles. Whether those Articles to which no Proof was produced, or which were not fully proved, could have been sufficiently proved we leave the World to determine, after they shall have perused the Proofs contained in the Appendix to this Narrative, and which would have been produced to the House, had Time been allowed. But to return to the matter of fact given in Evidence to the House, upon the seventh Article; Mr. John Bryan on his Examination upon Oath before the House declared that some Time before the last Circuit-Court held at Newbern, one Walker was committed to Prison by Captain George Roberts, upon the Complaint of Mr. Joseph Hannis upon Suspicion of having stolen a Negro from the said Hannis, that some Time after the Commitment of the said Walker, Mr. Hannis came to the said John Bryan he being one of His Majesty’s Justices of the Peace for the County of Craven and desired him to let Walker out of Prison, for that his Negro was come home, and he was fully perswaded that his Accusations were groundless against him, and that he was sure Walker never had the Negro; but he the said John Bryan fearing that thro’ Ignorance he might do wrong, he advised with William Wilson, Esq; Sheriff of Craven County, and with Mr. Seth Pilkington Guardian to the said Walker, who represented to the said Bryan that it was a very hard Case that Walker should be kept in Prison upon that Account, because the very Negro for which he was committed was Justice Walker’s Negro, in right of his Mother agreeable to a Law of the Island of Barbados, and that Mr. Hannis was possessed of that negro no otherwise than as Administrator to the said Walker’s Father, but as Mr. Hannis who had been the Accuser had absolutely acquitted him, they were of Opinion that the said Bryan might discharge him the said Walker without any Hazzard, and that if they were Magistrates they would do it; and Mr. Seth Pilkington the Guardian of Walker further told Mr. Bryan that if he would Discharge Walker he would give him his Bond to indemnify him, which he afterwards did. That the said Bryan upon this and having likewise examined the Commitment of the said Walker, which he found to be without Date, and without mentioning for what he was committed, and Mr. Hannis having informed him that he had entered into no Recognizance to Prosecute the said Walker, he Discharged the said Walker out of Prison, and the said Bryan further declared upon his Edition: current; Page: [916] said Examination before the House that at the Circuit-Court at Newbern, he had information given him that the Chief Justice was displeased at this Proceeding of his, and that before the end of the Court he must expect to be call’d upon to Answer for so doing; upon this, the said Bryan attended about the Court and near the Court-House; but that he never heard himself call’d upon for that purpose, but one Day being near the Court-House Door he heard the Affair mentioned in Court with much heat by the Chief Justice, who pronounced the said John Bryan fined Ten Pounds Proclamation Money, that he knows of no Information or Presentment made or fil’d against him, neither was there to his Knowledge any Oath made by any Person against him, nor was he inform’d or believed that any was taken. That the said John Bryan heard a certain Person in Court whom he believes and took to be Mr. Herritage Attorney at Law, move the said Chief Justice that he wou’d be pleas’d to send for the said Bryan, and hear what he had to say for himself, that he was sure if his Honour was but acquainted with the Case he would mitigate the Fine, that he hoped his Honour meant Ten Pound Bill Money. The said Bryan declared upon his Oath that he heard some Person whom he took to be the Chief Justice, and was afterwards inform’d it was him, reply in these Words as near as he could remember, I am well informed in the Affair, do you know Sir my Sentiments better than I do my self, I do pronounce John Bryan fined Ten Pounds Proclamation Money, and that to enlighten the Gentleman’s Understanding; and the said John Bryan further declared that an Execution was issued Signed by the said Chief Justice, directed to the Sheriff of Craven County to levy the said Fine upon the said Bryan, and that in Consequence of the said Execution he paid to William Wilson, Esq; Sheriff the Sum of seventy five Pounds Current Money of this Province, and took the said Sheriff’s Receipt for the same. The Receipt mentioned by the said Bryan was produced to the House by Sir Richard Everard. There are some other Circumstances which would have been still a stronger support to this Article, forgot by Mr. Bryan in his Examination, for which we refer the Reader to the Appendix.

Mr. William Herritage Attorney at Law and Clerk of the House of Burgesses, was call’d upon by Mr. Speaker in order to clear up this Article on the side of the Chief Justice, tho’ by what he said he left it worse than he found it, after being Sworn, he was ask’d if the said Bryan had been call’d in Court to Answer to the Offence for which he was fin’d, to which he believed he was, when the Court sat in the Morning of that Day in the Afternoon of Edition: current; Page: [917] which the said Bryan was fined, he also Swore that he appeared for the said Bryan at his Desire, but agreed to take no Fee for so doing and being asked whether he moved the Chief Justice in Court that Bryan might be sent for, and that the Fine might be Mitigated, he declared that he had so done, and that the Chief Justice made Answer to his Motion much as Mr. John Bryan had Sworn, and being further ask’d if any Enquiries had been made into Bryan’s Offence in open Court, if there was any Information against the said Bryan, or any Evidence examined upon Oath in Court in Relation to the said Bryan’s Offence for which he was fined, he answered that he knew of none such.

This was the whole Substance of Mr. Herritage’s Examination which was very far from answering the Ends intended by it; we leave to the World to judge if any Evidence be wanting to support this Article, and whether this Article alone is not sufficient to take away the Pretension of any Judge to the Character of Impartiality and Uprightness. We shall return again to the Journals.

And then they Proceeded to the second Article, and produced Mr. Joseph Anderson, and Mr. Archibald Hamilton Evidences.

Mr. Joseph Anderson Attorney at Law and formerly Clerk of the General Court, being upon Oath, was examined before the House as follows; he was asked if the said Chief Justice had taken the Oath directed to be taken by all Justices of the General Court for observance of the Jury Act, and whether the said Chief Justice had observed that Act, to which he reply’d that the Chief Justice had taken that Oath, and followed the Directions of that Act in drawing Jurors at a General Court in which he presided before he went for England but that ever since his return he had absolutely disregarded that Act.

Mr. Archibald Hamilton Attorney at Law, being Sworn was asked by the House; if the Jurys at the General Court since he had practised the Law at the Court, had been drawn according to the Directions or the Jury Act; to which he reply’d that the Jurors who were Summoned to appear and serve at the General Court have not been drawn by Balot according to the Jury Act, but have been constantly Summoned by Venire from the Chief Justice without any regard to that Law; and being further ask’d if he ever heard the Chief Justice acknowledge that Law to be in Force, and that he had taken the Oath by that Law directed to be taken; Answered, that he heard the said Chief Justice in open Court declare the Act of this Province for appointing Edition: current; Page: [918] indifferent Jurymen in all Cases civil and criminal to be in Force, and that he had taken the Oath by that Act enjoined.

Before we take notice of the next Article mentioned in the Journals of the House, we must inform our Readers that the third Article is not mentioned in the Journals, from whence that neglect proceeded is not material, it sufficeth that the Article was true, which evidently appears from the said Chief Justice’s taking the Oaths before the Governor in Council, sometime after Exhibition of the Articles to the House. But to proceed to the Journals.

Then Proceeded to the fourth Article and produced Mr. Joseph Anderson, Evidence.

We cou’d wish the Journals of the House had been more full and express, and that they had been pleased to have suffered the Evidence to have been committed to writing, it would have spared us the Trouble and Pain we are forced to encounter to render the Proceedings intelligible to our Readers, this Article accuses the Chief Justice with assuming to himself, equal Power and Authority with the Court of King’s Bench at Westminster, &c. to support which two original Writs for the Execution of Criminals at Edenton were produced and read to the House, the first in these Words, Viz.

North-Carolina, ss.

GEORGE the Second by the Grace of God, of Great Britian, &c.

To the Provost Marshal of our said Province, Greeting.

Whereas at our Court of King’s Bench holden for our said Province at the Court-House in Edenton on the last Tuesday in July last before our Chief Justice and his Assistants Judges, one Beal Brown of Edgcomb Precinct in our said Province Planter was Convicted for the felonious stealing a Horse from Constant Williamson, and thereupon received Sentence of Death, and at the Motion of our Attorney General for a Writ to Command the Marshal of our said Province to put the Sentence against him the said Beal Brown in Execution, which was granted, and a Rule of Court thereon made, we therefore Command you that on Thursday the fifth of this Instant August, between the Hours of ten of the Clock in the Forenoon and three in the Afternoon, you Cause the Body of the said Beal Brown to be carried from our Gaol at Edenton to the Place of Execution, and there to be hanged by the Neck till he is dead, and all our Leige People are hereby Commanded to be aiding and assisting in the Premises. Herein fail not and make due Return of this Writ, and your Proceeding thereon. Witness Edition: current; Page: [919] William Smith, Esq. our Chief Justice of our said Province at Edenton the second Day of August, in the tenth Year of our Reign, Anno Domini. 1736.

W. Smith, C. J.

The Execution of which Writ, was thus Certified in writing upon the back thereof, like wise read to the House.

Edenton, ss. By Virtue of the within Precept I executed it on the Body of Beal Brown, on the Day and Time of the Day within mentioned being this fifth Day of August, Anno Domini 1736.

Christo Becker, D. M.

The other original Writ for the Execution of one John Tucker convicted of Burglary and Felony of the same Date with the former and in the same Words Mutatis Mutandis, and upon the back thereof was Indorsed as follows, Executed this 5th Day of August, 1736.

Christopher Becker, D. M.

Mr. Joseph Anderson declared upon Oath the said Writs to be original Writs, by which the aforesaid Criminals were Executed, he being at that Time Clerk of the Crown.

Mr. Speaker having declared to the House that His Majesty’s Warrant or Sign Manual, for appointing Mr. Smith Chief Justice of this Province, gave to the said Chief Justice the same Power as the several Courts in Westminster Hall are possessed of, that our Readers may be fully satisfied how much Mr. Speaker is mistaken in his Assertion, we shall present them with an exact Copy of that Warrant taken from the Records, then leave them to determine, if the Chief Justice has the least Pretension or Title to Claim or Execute the Powers of His Majesty’s Ancient Court of King’s Bench at Westminster.

G R

Trusty and well Beloved, We Greet you well.

Whereas we have taken into our Royal Consideration the Integrity and Ability of our Trusty and well Beloved William Smith, Esq; we have thought fit hereby to Require and Authorize you forthwith to cause Letters patents to be passed under our Seal of that our Province of North Carolina in America, for Constituting and Appointing the said William Smith our Chief Justice of and in our said Province, to have, hold, execute Edition: current; Page: [920] and enjoy the said Office during our Pleasure and his Residence within our said Province, together with all and singular the Rights, Profits, Privileges, and Emoluments unto the said Place belonging or appertaining, with full Power and Authority to hold the Supream Courts of Judicature, at such Places and Times as the same may and ought to be held within our said Province, and for so doing this shall be your Warrant, and so we bid you Farewell. Given at our Court at St. James’s the 13th Day of November in the fourth Year of our Reign.

By His Majesty’s Command.
Holles Newcastle.

The fifth Article not mentioned in the Journals notwithstanding it contains a fact so notoriously known that not one Member in the House was a Stranger to it.

We shall again Return to the Articles.

Then Proceeded to the sixth Article, and produced Mr. Joseph Anderson Evidence.

The Journals neglect mentioning a more material Evidence produced to Support this Article, than Mr. Anderson who only corroborated the Examination of Mr. Dawson taken upon Oath by one of His Majesty’s Justices of the Peace for Bertie County, read to the House as follows, Viz.

The Examination of John Dawson taken before Mr. John Edwards one of his Majesty’s Justices of the Peace for the said Precinct the 14th Day of January 1737, who being duly Sworn on the Evangelists of Almighty God, declares that he made his personal Appearance at a General Court held at Edenton the last Tuesday in July last, and as he was in the Evening walking in the Street near the Court House in Company with one James Barnes, accidentally met Mr. James Trotter Deputy Marshal, and one Jackson who immediately Summoned the said Dawson to attend that Court as a Petit Juryman, Mr. Dawson at the same Time telling him that he need not have given himself the Trouble for he had been Summoned before; Trotter reply’d that he could not expect any Favour at his Hand, Dawson answer’d that he did not, and if he had any Trump Cards in his Hands to play them for he (meaning himself) might chance at one Time or other to have Jack and Ace in his Hands, and should make Use of them; Trotter signified that he the said Dawson had used him very ill at his House, when he Demanded the Quitrents, and he might expect no Favour at his Hands, Dawson replying he was sorry when he took his Money from him in the manner he did, that he had not well basted him; which ended the Conversation.

Edition: current; Page: [921]

Next Day the Court being opened and fitting, the Petit Jury was called, where the said Dawson appeared, and were all ordered to give their Attendance when wanting, whereupon John Montgomery, Esq; His Majesty’s Attorney General moved to the Chief Justice that Mr. James Trotter the Marshal had Complained to him that one John Dawson had insulted him in the Execution of his Office, Trotter being call’d, and Barnes and Jackson being Sworn, and having both delivered their Evidence in the very Words above narrated. The Judge asked Trotter if he was at that Time in the Execution of his Office, who reply’d your Honor knows I am always about my Business in Court Time, but could not readily give any Account of what particular Business, but remembered that he had then Summoned the said Dawson on the Jury, to which Trotter was Sworn, the Judge ask’d Mr. Dawson, what he had to say for himself for insulting one of His Majesty’s Officers in the Execution of his Office in Time of the Court sitting; who answered that it being in the Evening when the Court was adjourned, and as he had been Summoned before that Time, in Obedience thereto he appeared, and did not intend any Offence to His Majesty’s Officers, if deemed such he did it Ignorantly and was sorry for it; the Judge without any further Enquiry, expressed himself in these Words, I commit you to Gaol without Bail or Mainprise, there to remain till you pay Ten Pounds Proclamation Money, and give sufficient Security for your good Behaviour for twelve Months and one Day and Night. Mr. Chief Justice sent for the said Dawson to his Lodgings, when Mr. Attorney General and Captain William Downing an Assistant Judge procured his enlargement from Saturday Evening till Monday Morning.

The Court being opened at the usual Time on Monday, the Judge discovered some Words written on his Desk by some Person unknown, reflecting very much upon his hasty committing and fining the said Dawson, which occasioned a warm Debate between the Judge and Mr. Attorney, whereupon Mr. Attorney ordered the said Dawson to Prison, where he continued two Days and Nights, and being prevailed upon by his Friends paid Ten Pounds Proclamation Money, gave the Security required, and was dismissed.

Certified under my Hand the Day and Year above written,

John Edwards, Pac. Just.13
Edition: current; Page: [922]

Mr. Joseph Anderson who was call’d as a corroborating Evidence, declared that the said Dawson had been fined and imprisoned as he hath Sworn.

But to return to the Journals.

Then Proceeded to the eight Article and produced Mr. Joseph Anderson, Mr. John Caldom, Mr. Bryan, and Mr. John Starkey Evidences.

Here again the Journals are remiss in not mentioning all the Evidences produced to Support this Article, besides those mentioned in the Journals, John Montgomery, Esq; Mr. Archibald Hamilton and Robert Calahorn were examined, and the Deposition of John Boude read, before the House; Mr. Joseph Anderson informed the House that he indicted one James Kelly for a forcible Entry, that the Indictment was quashed, as is set forth in the Article, that Kelly paid as he believes between l. 70 and l. 80 Bill Money, in which all Fees relating to the same were included, that he knew of no particular Fee ascertained by the Law of this Province for such Service, but that he made out the Fees Kelly paid by Direction from the Chief Justice from the Compleat Attorney and Solicitor.

Mr. Archibald Hamilton Swore that Kelly informed him that the Fees with which he was made chargable for that Indictment, amounted to Twenty two Pounds Ten Shillings Proclamation Money, and that he had paid l. 90 Bill Money in Lieu thereof.

John Montgomery, Esq; also inform’d the House that Kelly acquainted him that he had paid l. 90 for the Expence, occasioned by that Indictment.

The Deposition of John Boude aged near thirty Years, being first Sworn on the Holy Evangelist, saith that he was by the Grand Jury at Edenton in the Year 1735 or 1736 presented for having a Bastard Child by one Katharin Dew, which this Deponent hearing of, went into the General Court, and moved by his Attorney to be heard on the said Presentment, and on Motion to the said Court Mr. Chief Justice Smith and Mr. John Montgomery Attorney General allowed the said Presentment to be insufficient, the said Deponent having comply’d with the Laws of the Province, in paying the Fines to the Church Wardens of the Parish, and providing necessaries for the Support and Maintainance of the Child, and that the said Child was Born near five Years before the said Presentment and the Fines then paid, and that the said Deponent has not Cohabited with the said Katharine since, nor ever heard that there was any previous Complaints either by Church Wardens, Overseers of the Poor or any other Persons, and that he had always maintained the said Child in a Christian like manner, Edition: current; Page: [923] and further saith that when the said Court dismissed the said Presentment, Mr. Attorney John Montgomery, Esq; moved that the Deponent should pay the Costs, but Mr. Chief Justice Smith was silent, altho’ Mr. Montgomery mentioned it twice to the said Court, and the Deponent thought he was to pay no Costs, there being nothing Alledged against him but a very short Presentment from the Jury, and no Summons or Bill prefer’d against this Deponent, or any Thing else as he ever heard of but the said Presentment; yet notwithstanding the Deponent for fear of further Trouble went to the Clerk of the Crown when the Court was Adjourned, and tendered to pay the Fees, and demanded to know what they were; the said Clerk laughing reply’d, Let it alone, I don’t know whether you have any Thing to pay, and made a Poh at it, from which this Deponent apprehended it to be a very Trifle, but in a very short Time the Deponent met James Trotter the Marshal, who shewed the Deponent an Execution against him for Twenty-six Pounds some odd Shillings Fees for the said Presentment, and the Deponent further saith that soon after seeing the Clerk of the Court and resenting his sending out the Execution, he excused it by saying he could not avoid it, for it was by the Chief Justice Smith’s Commands, the which Twenty-six Pounds the Deponent paid; and further saith not.

John Boude.
Thomas Hansford.

Robert Calahorn being examined upon Oath Swore that himself, Andrew Conner, and others were indicted at the last Circuit Court held at Bath-Town for a Riot, as in the said Article is set forth, that himself and Andrew Conner each of them paid the Sum of Twenty two Pounds to the Chief Justice and his Clerk for Fees for the said Indictment, that he paid the same by Mr. John Caldom’s Assumption that Execution for the like Sum were out against the other Persons mentioned in the said Indictment.

Mr. John Caldom Swore that he gave his Assumption to pay to the Chief Justice and his Clerk the Sum of Twenty-two Pounds upon the Account of the said Robert Calahorn, and for the like Sum upon the Account of Andrew Conner, and that upon his the said Caldom’s Assumption, the said Calahorn and Conner were discharged from the Demand of the said Chief Justice and his Clerk. We shall again Return to the Journals which brings us to the ninth Article.

Edition: current; Page: [924]

Then proceeded to the ninth Article and produced a Copy of Anthony Booth’s Deposition in Evidence.

Bertie Precinct, ss. On the 17th Day of March 1737, came before me John Holbrook, Esq; one of His Majesty’s Justices of the Peace, Anthony Booth, and made Oath, on the holy Evangelists that on or before the first Day of October last he the Deponent being sick in Bed of a Fever, Peter Young Deputy Marshal, served two several Executions on the Body of the said Deponent for Debt, one for two Pounds Ten Shilling, and another for two Pounds five Shillings Bills together with Costs and Charges amounting to upwards of seventy Pounds, tho’ the Deponent never was legally Arrested, for which the said Peter Young insisted upon carrying the said Anthony Booth to Prison, but the Deponent being very ill with great Difficulty prevailed upon the said Young to take a Negro Girl for Security of the Payment of the above Sum until the Court. Accordingly the said Young took her with him to Edenton, by consent of the said Deponent, notwithstanding which the said Peter Young with three Assistants came a second Time and received from the said Deponent 4000 Pounds of fresh Beef into his Boat, and at the same Time forced the said Deponent on Board the Boat with the Beef to Edenton (by which means the Deponent was Violently forced away) and kept him Prisoner two Days and then discharged him.

Sworn before me,

J. Holdbrook. J. P.

The said Deposition was endorsed, A true Copy examined by us John Swann and Thomas Jones, Col. Maurice Moore and Mr. John Swann affirmed to the House that they had examined the said Copy with the Original, and that it was a true Copy. But if the House had been in any Doubt as to the Truth of that fact, they ought to have commanded Booth’s Attendance.

Then proceeded to the tenth Article, and produced Mr. Joseph Anderson, several Executions, and Mr. Richard Lovit Evidences.

Mr. Anderson being asked if he was Clerk of the General Court at the Time the Facts alleged in this Article were committed, declared he was not. The several Executions and other written Evidences produced to the House, were as follows, Viz. The first Executions against Samuel Bridgin in these Words.

Edition: current; Page: [925]

North-Carolina, ss.

Seal.

GEORGE the Second by the Grace of GOD of Great Britian, &c.

To the Provost Marshal of our said Province. Greeting.

We Command you to take Samuel Bridgin of Cape-Fear so you that have him before our Justices at our next General Court to be holden for our said Province at the Court House in Edenton on the last Tuesday in March next, to satisfy four Pounds eight Shillings and three Pence Proclamation Money, which in our Court on the last Tuesday in October last, was adjudged and taxed for his Costs in his Suit against Thomas Fullwood, wherein he would no further Prosecute, whereof he is convicted. And have you then and there this Writ, with your own Fees. Witness William Smith our Chief Justice of our said Province at Edenton the 19th Day of November, Anno Domini, 1738.

W. Smith, C. J.

Which Execution was endors’d on the back in the Hand writing of Mr. Richard Lovit Attorney at Law to whose Care that Execution was committed.

Proclamation Money
Chief Justice l. 4 8 3 } In Bill Money at four for one l. 19 18 0
This Precept 11 3
l. 4 19 6

Then was Read Mr. James Craven’s Receipt for the Fees in that Action agreeable to Allegations of the Articles the second Time the same was paid by Samuel Bridgin, but as the Chief Justice’s Friends would not allow Time sufficient to send for Bridgen and others, designated as Evidences to support this Article, we refer our Readers to the Appendix.

Received September 22d 1739, of Mr. Samuel Bridgin the Sum of seventeen Pounds thirteen Shillings Current Bills, for Fees due in his Cause against Thomas Fullwood due to the Chief Justice and Clerk of the Court. I say Received for the Use of the Chief Justice and Clerk of the General Court.

Per James Craven, Cl Gen. Court.

Rufus Marsden has paid a Fieri Facias for discontinuing his Suit against Edward Davis, the Sum of seventeen Pounds ten Shillings to Thomas Rowen, Edition: current; Page: [926] and since has paid a Fieri Facias for the said Action the Sum of eight Pounds five Shillings to the Chief Justice as may appear by the Clerk’s Receipt.

Rufus Marsden.

Daniel Dunbibin paid an Execution at the Suit of James Fergus, thirty Pounds to Thomas Rowen, which he can make appear by the Oath of Edward Scot and James Fergus, and since has been compell’d to pay the Sum of twenty-one Pounds for Costs of the said Suit as may appear by the Clerk’s Receipt.

Daniel Dunbibin.

Mr. Richard Lovit declared upon Oath before the House that he believed Mr. Dunbibin might have paid the Sum to Mr. Thomas Rowen deceased, Clerk of the General Court thro’ the Hands of Mr. Edward Scot.

Then was produced and read to the House an Execution upon a Non Pros against William Dry in the same Words (Mutatis Mutandis) as that against Samuel Bridgin, being for the Sum of four Pounds and five Pence Proclamation Money, and also three Fieri Facias’s against the said Dry for the Discontinuance of three Suits brought by him in the General Court, all of them of the same Date. In the following Words (Mutatis Mutandis.)

North-Carolina, ss.

Seal.

GEORGE the Second by the Grace of GOD King of Great Britian, &c.

To the Provost Marshal of our said Province. Greeting.

Whereas at our General Court holden at Edenton, the last Tuesday in October last for our said Province, William Dry having discontinued a Suit against Jonathan Caulkins it was order’d that he pay Costs, as to us of Record appears, which said Costs have been taxed at Three Pounds seventeen Shillings, Proclamation Money, and as yet hath not been paid or satisfied.

We Command you that of the Goods and Chattels of the said William Dry if to be found in your Bailwick you Cause the same to be levied, paid and satisfied together with eleven Shillings, and three Pence Proclamation Money, accruing on this Writ as also your own Fees, and make due return. Herein fail not. Witness William Smith, Esq; Chief Justice of our said Province at Edenton this 10th Day of November, 1737.

Edition: current; Page: [927]

The other two Executions against Capt. Dry were one of them for Discontinuance of a Suit against Thomas Sawier, and the other for the like against Clifton Brown and the Costs mentioned in them, besides the eleven Shillings and three Pence Proclamation Money as follows, Viz.

Proclamation Money,
Mr. Dry’s Cost in his Suit against Brown l. 3 17 0
Mr. Dry’s Costs in his Suit against Sawier 3 12 0

We shall now again return to the Journal,

Then to the eleventh Article, and produced Mr. Joseph Anderson Evidence.

The Evidence produced to support the tenth Article fully and clearly proved this Article; Mr. Anderson was asked if the Execution against Samuel Brigdin upon the non pros was in the Form which the Chief Justice constantly issued them in, he reply’d he believed it was in the same Form, and being asked if eleven Shillings and three Pence Proclamation Money was the Fee which the said Chief Justice claimed for himself and Clerk for such Executions, he answered it was.

Then proceeded to the twelfth Article and produced Mr. Joseph Anderson and Mr. Richard Lovit Evidences.

Here again the Journals decline mentioning the most material Evidence produced and read to the House to support this Article, and concerning which only the two Evidences mentioned in the Journals were call’d, the first being an original Warrant granted by the Chief Justice against William Crosby.

By the Honorable William Smith, Chief Justice,

North Carolina, ss.

Seal.

Whereas I have this Day received Information upon Oath that William Crosby of Onslow Precinct Planter, about the first Day of June last did felloneously and of Malice afore thought, assault and wound David Berry, of which wound the said David Berry for sometime Languished, and about five Weeks after died, and likewise that he the said William at the Time aforesaid did without any lawful Provocation assault, wound, and bruise William Dudley.

These are therefore to Command you to apprehend the Body of the said William Crosby and him bring before me at Edenton, or before Edition: current; Page: [928] Abraham Mitchell in Onslow to Answer the Premises and to be dealt with according to Law. Fail not, and for so doing this shall be your Warrant. Given under my Hand and Seal at White Oak, December 4th 1734.

W. Smith C. J.

To the Provost Marshall and his Deputy, and to each and every the Constables of the aforesaid Province & their Assistants.

And then was read an Execution against Dudley in the usual Form, for one Pound ten Shilling and seven Pence half Penny Proclamation Money, and eleven Shillings and three Pence of the like Money Fees for the said Execution; that Execution suggests that Dudley had discontinued a Suit against William Crosby: all the Attorneys who practised in the General Court of this Province at that Time except one being present they were severally ask’d by the House if any of them knew of, or had brought any Action against William Crosby at the Suit of Dudley, and they severally declared they had not, neither could they recollect any such Action to have been upon the Docket. It is further remarkable, that Mr. Richard Lovit who receiv’d the Money and Fees arising from the Execution against Dudley, upon Account of Mr. Chief Justice, could not recollect any Action brought by Dudley against Crosby, he gave the following Receipt upon the back of the Execution.

Receiv’d the within Sum of eight Pounds seven Shillings and six Pence for the Use of William Smith Esq; Chief Justice, 2d July 1740.

Richard Lovit.

As this Case is very remarkable we intend to state it at large in our Appendix, to which we refer our Readers.

We shall now go on with the Journals.

Then proceeded to the thirteenth Article and produced Mr. Archibald Hamilton Evidence.

Mr. Hamilton being produced to support this Article is a circumstantial Evidence only, and the Evidence who would have put the same beyond Dispute not being there thro’ want of convenient Time and the aid of the House, we shall refer our Readers to the Appendix.

But to follow the Journals.

Then to the fourteenth Article which they agreed to expunge being used in private Conversation, notwithstanding which Confession we are of Opinion, Edition: current; Page: [929] we ought to convince our Readers that the Matter contained in that Article was Truth, as will undeniably appear from the following Deposition.

Bertie Precinct, ss: March 17, 1737,8.

James Castelaw of this Precinct of fifty Years of Age, and duly Sworn on the holy Evangelists saith, that on the 27th July having some Discourse with the Chief Justice Smith and Mr. Attorney General Montgomery in James Trotter’s Porch, concerning the Hardships the Inhabitants of this Province labour’d under since the Administration of his Excellency Gabriel Johnston, Esq; our present Governour, told them they were got to that height that we should be under a necessity to rebel against them or run-away and leave our Lands and Livings, behind us, Chief Justice Smith in a heat answered, by God I wish you would, that is what we want; the Deponent started up from the Place where he sat betwixt them, surpriz’d at such an unguarded Expression, and reply’d, good God, what a strange Government we are under, that the Ministry Labour the ruin of the Subject, and are so bare faced as to own it. The Attorney said fye fye, are such Expressions fit to come out of the Mouth of a Chief Justice of a Province, or Words to that effect. The Day following John Dawson a Member of the Assembly, was committed to the Publick Gaol by Judge Smith for Words passed in the Street between him the said Dawson and James Trotter, there to lie without Bail or Mainprize until he paid ten Pounds Proclamation Money, and fined Security for his good Behaviour (as this Deponent was inform’d) for a Year and a Day.

Sworn before me

John Holdbrook, Jus. Pea.

Now we attend the Journals to the fifteenth Article.

Then to the fifteenth Article and produced Mr. Archibald Hamilton Evidence.

Mr. Hamilton upon his Oath declared that he heard the Chief Justice in open Court abuse Mr. Arthur Mabson, in the Manner and Words, and at the Time as in that Article is expresly mentioned.

We come now to the sixteenth and last Article mentioned by the Journal.

Then to the sixteenth Article not any Evidence produced.

As the Proofs produced before the House were brought there not to convict but only to induce the House to accuse the Chief Justice, it was Edition: current; Page: [930] thought needless, to prove what every Member must by occular Demonstration know to be Truth, there was scarce any Member of that House who had not at Times made his Observation thereof, and was well convinced that Mr. Chief Justice has long since merited a Myrtle Wreath.

We come now to the Debate and Question upon the Articles.

Then proceeded to Debate the same, whether the Proofs to the said Articles are sufficient for the House to Impeach the said Chief Justice.

Then Mr. Speaker resumed the Chair.

Mr. Chairman reported from the Committee of the whole House that the above Articles and Proofs were debated by the said Committee.

Then the Question was put whether the Proofs that were produced and heard to support the said Articles were sufficient for the House to Impeach the said Chief Justice, or whether they be rejected.

And voted by a Majority of six Votes rejected.

Vera Copia Wm. Herritage, Cl. Dom. Bur.
For rejecting the Proofs
Mr. Tho. Lovick, Colector of Port Beaufort. Mr. George Roberts
Mr. Richard Rigby
Mr. Thomas Hunter Col. Benjamin Hill
Mr. George Bould Mr. John Blount
Doct. Abraham Blackall Mr. John Caron
Deputy Post Master. Mr. Jacob Caron
Mr. James Craven, Clerk of the General Court. Mr. Leary
Mr. Joshua Long
Col. Macrora Scarborough Mr. James Sumner
Mr. Carruthers Mr. Walton
Mr. Tho. Pendilton Mr. Joseph Tart
Mr. David Bayley Mr. Thomas Lowther
Mr. William Relf
Against rejecting the Proofs.
Col. Maurice Moore Mr. Arthur Mabson
Mr. James Castelaw Mr. Samuel Swann
Mr. Tho. Bryan Mr. John Swann
Mr. John Brown Mr. William Bartram
Mr. Simon Alderson Sir Rich. Everard, Bart.
Mr. John Banbury John Montgomery, Esq; His Majesty’s Attorney General.
Mr. John Starkey
Mr. William Brice Mr. Joseph Sutton
Mr. Edmund Smithwick Mr. Samuel Sinclair
Mr. William Gardiner

I have now gone thro’ the Articles and the Matters of Facts relating to them as the same were actually given and produced before the House, and I make no doubt but that our Readers are convinced that, that Proceeding of ours was the pure Effect of our Duty, and that the Articles of Complaint are neither frivolous, idle, or malicously intended only to asperse and blacken the Chief Justice, as he hath suggested, tho’ the Members for the Articles acted by his own Directions and Advice, and as it were with his own Consent signified to them from the Bench in many of his Charges to the Grand Juries of this Province, That he who condemes the Innocent and he who letteth the Guilty go frees are both an Abomination to the LORD.

We appeal to our Readers if it be not very monstrous to suppose that a Sett of Gentlemen who without vanity may be looked upon at least equal to any in the Province, should conspire together to blast the Expectation and ruin the Fortune of the Chief Justice, only to gratify some little Pique or Malice of their own, in manifest and open Contradiction, to Truth, and the Sense of the rest of the Province: As such an attempt as this would be little short of down right Madness, so it would be very easily baffled, and the villany of it exposed to the World, and the Actors therein would meet with deserved Reproach and Contempt; But blessed be God we live under a British Constitution, where Liberty is our undoubted Inheritance, is well understood and ought to be enjoyed in it’s full Extent; in such a Government if any one shall presume to break thro’ and violate the common Benefits and Priviledges, secured to us by Law, and trample under Foot the most solemn Oaths, the most binding and necessary Laws, Laws upon which the Safety of the whole Province necessarily depends, and which have never been before then broken or disobeyed, I say when all this happens, and Men in Power, behave as if they were less accountable for the abuse of their Trust, then the Royal Hand which bestowed it upon them; is it not high Edition: current; Page: [932] Time for People labouring under such Oppressions and Injuries to look about them? Is it not necessary to put a stop to such Iniquities, and is it not just at least to endeavour to punish such daring Offenders; can any Man or Set of Men possibly remain quiet and easy when they see by Experience that neither the Laws of Great Britain nor those of their own Province, are sufficient to secure them against the arbitrary Attempts of Men in Power? And is it not the greatest Hardship and Cruelty imaginable that Men in such a wretched Condition endeavouring honestly to discharge the Trust reposed in them by the injured and oppressed People, complaining in the most decent manner of these Enormities; should be looked upon by the Gentlemen in the Administration little better than Rebels, and that Gentlemen who had Courage and Honesty sufficient to exhibit Articles upon just Grounds against the Chief Justice, should be called Libellers and Opposers of the Measures of the Government, purely for the sake of Opposition only, and that those necessary Articles against the Chief Justice, which are founded upon undeniable Matters of Fact, should be called by him false and libellous? It is an easy matter to say so of the most solemn Truths, but we take the freedom to put that Gentleman in mind, that the World will be much better satisfied with his proving them false and libellous, than with his bare ipse dixit,14 that they are so.

Our Readers we make no doubt will look upon the Matters of Fact contained in the Articles and the Proofs collected in this Narrative, as sufficient to support the necessity and justness of our Proceedings against Mr. Chief Justice Smith.

The great Care taken by himself and Friends to suppress the Evidence against him, by contracting the Time and by the other Methods and Artifices before mentioned, ought to be taken for the strongest Evidence imaginable. Upon the whole it intirely lies upon Mr. Smith to convince the World that he is injured by us, and that he has behaved with that Uprightness and Integrity in his Station that he ought, and which we could have wished had accompanyed all his Actions.

THE END.
Edition: current; Page: [933]

34: [William Douglass], A Discourse Concerning the Currencies of the British Plantations in America (Boston, 1740)

William Douglass was a Scottish-born physician, educated at universities in Edinburgh, Leiden, Paris, and Utrecht, from the last of which he received his M.D. In 1718, when he was in his late twenties, he settled permanently in Boston, where over the next thirty-four years until his death in 1754, he proved himself to be a vigorous polemicist who could write authoritatively on a wide variety of subjects in medicine, politics, economics, and history, his most famous and ambitious work being A Summary, Historical and Political, of the First Planting, Progressive Improvements, and Present State of the British Settlements in North America, the fullest account of the history of colonial British North America up to the time of its publication in 1748. This pamphlet grew out of his extensive involvement in the late 1730s and throughout much of the 1740s in the lively debate then raging in New England and some of Britain’s other American colonies over the utility and necessity of paper currency.

From early on after the initial settlement of the colonies, the drain of hard money to pay for English and other European goods had left American settlements without a sufficient medium for internal commercial exchange and without the means to pay for sudden emergencies arising from natural disasters or military threats. After the early 1690s more and more colonies began to issue and designate as legal tender paper bills to meet such exigencies. By retiring this paper at specified intervals, by requiring government Edition: current; Page: [934] acceptance of it for taxes and other fees, or by securing it with lands or other forms of collateral, colonial legislators endeavored to prevent, rarely successfully, their paper issues from depreciating. Responding to the fears of British merchants that such issues would lead to payment of colonial debts in depreciated paper, British authorities instructed royal governors to withhold consent from laws issuing further paper, but they often yielded when legislators could find no other way to meet public expenses, and, as Douglass complained, a charter colony like Rhode Island “admit[ted] of no Instructions from the King, [Privy] Council or Board of Trade.” In the late 1730s in New England, the desirability of paper currency, which had long been a medium of exchange, came under intense debate, as one group pressed for further emissions in an attempt to alleviate a general economic distress, while another opposed it as little more than an attempt to defraud creditors by increasing the supply and thereby lowering the value of money. No friend to paper currency, Douglass sought with this pamphlet to lay bare the evils of such a medium and to summarize and refute the contentions of its New England advocates. In the process, he provided a short history of the use of paper money in Europe and of its present state in all the British colonies in America. The British Parliament would eventually answer such calls for action by a 1751 statute prohibiting further issues of legal tender paper in the New England colonies, a prohibition that Parliament in 1764 would extend to all the continental colonies. (J.P.G.)

Edition: current; Page: [935]

a

DISCOURSE

Concerning the Currencies

of the

British Plantations

in

America. Especially with Regard to their

Paper Money:

More Particularly,

In Relation to the Province of the

Massachusetts-Bay,

in

NEW ENGLAND

BOSTON: Printed and Sold by S Knelland & T Green,

over against the Prison in Queenstreet.

1740.

Edition: current; Page: [936]

A Discourse concerning the Currencies of the British Plantations in America &c.

The many Schemes at present upon the Anvil in Boston, for emitting enormous Quantities of Paper Currencies; are the Occasion of this Discourse. The Writer does not vainly pretend to dictate to Government, or prescribe to Trade; but with a sincere Regard to the publick Good, has taken some Pains, to collect, digest, and set in a proper Light, several Facts and Political Experiences especially relating to Paper Currencies; which tho’ plain in themselves, are not obvious to every Body. If any Expressions should sound harsh, they are not to be understood as a Reflection upon this Province in general: It was always my Opinion, That the Province of the Massachusetts-Bay, is by far the most vigorous and promising Plant (with proper Cultivation) of all the British Plantations; in the best of Countries at Times, bad Administrations, and private evil Men of Influence have prevailed. The Author is not a transient Person, who from Humour or Caprice, or other Views may expose the Province; but is by Inclination induced, and by Interest obliged to study the Good of the Country.

All Commerce naturally is a Track Trade, exchanging Commodities which we can spare: (or their Value) for Goods we are in want of. Silver it self is a Merchandize, and being the least variable of all others, is by general Consent made the Medium of Trade. If a Country can be supposed to have no Dealings but within it self; the Legislature or tacit Consent of the People, may appoint or receive any Currency at Pleasure: but a trading Country must have regard to the universal commercial Medium, which is Silver; or cheat, and trade to a Disadvantage: It is true, that in some Countries of Europe Billon (a base mixture of Metals) is used for small Change, but not as a Medium of Trade.

Every Country or Society have their own peculiar Regulations, which may be called their Municipal, or By-Laws in Trade: but the universal trading Part of the World, as one tacit Confederacy have fallen into some general Rules, which by Custom of Merchants are become as Fundamental: One of these is a Silver Medium of Trade, that all Contracts (Specialties excepted) are understood to be payable in this Medium, being always of the same fixed Value, or easily adjusted by the Par, and accidental small Differences of Exchange from one Country to another.

Edition: current; Page: [937]

There can therefore be no other proper Medium of Trade, but Silver, or Bills of Exchange and Notes of Hand payable in Silver at certain Use’s or Periods, which by a currant Discount are reducible to Silver ready Money, at any Time. The Debitor Party (I am ashamed to mention it) being the prevailing Party in all our Depreciating-Paper-Money Colonies, do wickedly endeavour to delude the unthinking Multitude, by perswading them, that all Endeavours of the Governour, or Proposals and Schemes of private Societies, to introduce a Silver Medium, or a Credit upon a Silver Bottom, to prevent the honest and industrious Creditor from being defrauded; are Impositions upon the Liberty and Property of the People.

Depreciating of the Value of nummary Denominations, to defraud the Creditors of the Publick and of private Persons; by Proclamations of Sovereigns, by Recoinages, and by a late Contrivance of a depreciating Paper-Credit-Currency; were never practised but in notoriously bad Administrations.

All over Europe for many Ages preceeding the 14th Century, the nummary Pound, and the Ponderal or Pound Weight of Silver were the same: but in some following Ages in bad Administrations the Values of nummary Denominations were gradually reduced; as in England to 4 oz. Silver value (upon all Occasions I use the nearest round Numbers) one third of its original Value; in Holland the Pound Ulams (6 Guilders) to 2 oz. Silver being only one sixth of its original Value. A general Stop has been put to those notorious publick Frauds ever since Trade began to flourish; the civil Governments becoming more polite, found it their Interest in Affairs of a Medium of Trade, to be advised by the more knowing and experienced Traders: Thus, since the Reign of Edward VI. in England, the Shilling Denomination hath lost only 2 gr. Silver. We have two or three Instances of late in Europe, that have deviated from that Maxim of a fixed Value of Silver in Trade; these were in arbitrary Governments, under most arbitrary Administrations. 1. France by Recoinages from A. 1689, to the wise Administration of Cardinal Fleury, was obliged to defraud the Subject, to maintain unjust Wars and Rapines upon its Neighbours, and lessen’d the Value of nummary Denominations from a Mark of Silver at 27 Livres to 80 Livres. 2. The King of Spain A. 1668 lowered his Denominations 25 per Cent. a heavy Piece of Eight formerly 8 Royals Plate, passed for 10 Royals currant. 3. Sweden under the Administration of Baron Gortz.

Edition: current; Page: [938]

In all Sovereignties in Europe where Paper-Money was introduced, great Inconveniencies happened; upon cancelling this Paper Medium all those Inconveniencies did vanish. 1. In Sweden, Baron Gortz, by imposing Government Notes (and Munt tokyns) reduced the People to extreme Misery (this was one of the principal Crimes alledged against him when he suffered capital Punishment) but these being called in, and the Coin settled upon the same Foundation as it was before Charles XIIth Accession, Sweden flourished as formerly. 2. The late Regent of France, by the Advice of Mr. Law, did form a Project A. 1720, and by his arbitrary Power, endeavoured to put it on Execution; to defraud State Creditors and others, by banishing of Silver Currency, and by substituting a Paper Credit: the Effect was, the greatest Confusion, and almost utter Subversion of their Trade and Business: The Remedy was (Mr. Law having sneak’d off, became a Profugus1 and at last died obscurely) after a few Months the Court of France were obliged to ordain, that there should be no other legal Tender but Silver-Coin; and Commerce has since flourished in France more than ever. At present, under the wise Administration of Cardinal Fleury (who allows of no Paper Currencies, nor Recoinages, which had the same Effect in depreciating nummary Denominations in France, that frequent and large Emissions of Paper-Money have in our Colonies) their Trade bids fair to outdo the Maritime Powers (as Great Britain and Holland are called) and has a much better Effect in advancing the Wealth and Glory of France, than the Romantick butcherly Schemes of Conquest over their Neighbours, under the Administrations of Richelieu, Mazarine and others, in the Reigns of Lewis XIII and XIV. 3. In Great Britain A. 1716, were current four and a half Millions of Pounds Sterling in Exchequer Notes, being the largest Quantity current at one Time: although they bore about half of legal Interest, and not equal to one third of the concomitant national Silver Currency; they laboured much in Circulation, and the Government to prevent their being depreciated, was obliged to give considerable Premiums to the Bank for cancelling some of them, and circulating the remainder.

It is not easily to be accounted for, how England, France and Holland, have tacitly allowed their several American Colonies; by Laws of their several Provinces, by Chancerings in their Courts of Judicature, and by Custom; to depreciate from Time to Time, the Value of their original Denominations, Edition: current; Page: [939] to defraud their Principals and Creditors in Europe. The British Plantations have not only varied from Sterling, but have also very much varied from one another; to the great Confusion of Business, and Damage of the Merchant. This will appear plain by inserting at one View the State of the Currencies in the several British Plantations; whereof some are per Exchange, some in Spanish Silver Coin, and some in Paper Money called Colony or Province Bills of publick Credit.

Originally and for some Years following in all the English American Colonies, 5 s. Denomination was equal to an English Crown Sterl. after some Time Pieces of Eight, being the general Currency of all foreign American Colonies, became also their Currency; and they remitted or gave Credit to the Merchants at Home (by Home is meant Great Britain) a Piece of Eight (value 4s. 6d. Sterl.) for a Crown or 5s. Sterl. this was a Fraud of 11 per Cent. In sundry of our Colonies were enacted Laws against passing of light Pieces of Eight; these Laws not being put in Execution, heavy and light Pieces of Eight passed promiscuously; and as it always happens, a bad Currency drove away the good Currency; heavy Pieces of Eight were ship’d off. This current Money growing daily lighter, a Difference was made between heavy Money which became Merchandize, and light Money in which they paid their Debts gradually from 10, 15, 20, to 25 per Cent. as at present in Jamaica: this was another and continued Course of cheating their Creditors and Employers at Home. From a Complaint of Merchants and others dealing to the Plantations; Q. Anne by Proclamation, and the Parliament of Great Britain afterwards by the Proclamation Act, ordered, that after A. 1709, A heavy Piece of Eight and other Pieces in Proportion to their Weight, in all our Colonies should not pass exceeding 6 s. Denomination. This Act continues to be observed in none of our Colonies, excepting in Barbadoes, and Bermudas. Virginia Currency was formerly, and continues still better than what the Act directs.

In NEWFOUNDLAND, all large Sums are transacted in Sterling Bills of Exchange; small Dealings are in English Coin Sterling Value, and in Pieces of Eight at 4 s. 6 d. being the Sterling Value.

In NOVA SCOTIA; The Sterling Bills of Exchange on the pay of the Troops, Garrison, and Train, Supply them with what they may have occasion for from New England: Small Dealings are in New England publick Bills, and in French Coin from Cape Breton; one Livre equal to 4 s. New England Edition: current; Page: [940] Currency: at Canso Fish and Oil are purchased by Bills of Exchange New England Money upon Boston.

In the four Colonies of New England, viz. New-Hampshire, Mossachusetts Bay, Rhode Island and Connecticut, their Currency being Paper, is promiscuously the same.

NEW HAMPSHIRE (too diminutive for a separate Province, of small Trade and Credit) their Publick Bills are so much counterfeited they scarce obtain a Currency; hence it is (the Governour’s Instruction limiting Sum and Period is also a Bar) that at present, their outstanding Bills of publick Credit, some on Funds of Taxes, some on Loan, do not exceed l. 12,000, gradually to be cancelled by December 1742. Their ordinary Charge of Government is about l. 1500 New England Currency per Annum.

MASSACHUSETTS-BAY: This being more especially the Scene of our Discourse, we shall be more particular. At the first settling of the New England Colonies; their Medium was Sterling Coin at Sterling Value, and Barter; some Part of their Taxes was paid in Provisions and other Produce, called Stock in the Treasury. When they got into Trade a heavy Piece of Eight passed at 5 s. A. 1652, They proceeded to coin Silver Shillings, six Pences, and three Pences, at the Rate of 6 s. to a heavy Piece of Eight; Silver continued current at this Rate by sundry subsequent Acts of Assembly till A. 1705, by a Resolve of the General Court Silver was to pass at 7 s. per Oz. A. 1706 the Courts of Judicature chancered Silver to 8 s. per Oz. in satisfying of Debts, being nearly after the Rate of 6 s. a light Piece of Eight as then current. At this Rate Silver and Province Bills continued upon Par until A. 1714, the Assembly or Legislature fell into the Error of making from Time to Time large superfluous Sums of Paper Money upon Loans, and the Emissions for Charges of Government not cancellable for many Years, so that these Publick Bills have been continually depreciating for these last 26 Years, and are now arrived to 29 s. per Oz. Silver.

Massachusetts-Bay was the Leader of Paper Currencies in our Colonies. Their first Emission was of 40,000 l. A. 1690 & 1691, to pay off the publick Debts incurr’d by that expensive, unsuccessful, Expedition against Canada; of this Sum 10,000 l. was cancelled and burnt in October A. 1691: In the following Years no more new Emissions, but some Re-emissions of the remainder, and that only for the necessary Charges of Government, called in by Rates or Taxes within the Year; the last emission of these Bills was A. 1701, of 9,000 l. Bills all this Period continued at the Rate of 6 s. a heavy Edition: current; Page: [941] Piece of Eight, and were called Old Charter Bills. A. 1702 began new Emissions of Province Bills; but, as it ought to be in all wise Administrations, cancelled by Taxes of the same and next following Year, until A. 1704, the Rates for calling them in, were in Part postponed two Years; they began A. 1707 to postpone them in Part for three Years; A. 1709 for 4 Years; A. 1710 for 5 Years; A. 1711 for 6 Years; A. 1715 for 7 Years; A. 1721 for 12 Years; A. 1722 for 13 Years: Thus unnaturally instead of providing for Posterity, they proceeded to involve them in Debt. This long publick Credit and the enormous publick Loans, have depreciated our Province Bills to the small Value they bear at present; the Issues and Cancellings of their Bills being for a long Series of Years is too tedious to be particularly and minutely inserted.

The Province of the Massachusetts-Bay besides the Emission & Re-emissions of the 40,000 l. old Charter Bills, have since A. 1702 emitted and re-emitted Bills of publick Credit, 1,132,500 l. upon Funds of Taxes, and 310,000 l. upon Loans, being in all near one and a half Million; whereof about 230,000 l. still outstanding, and if publick Faith be better kept will be gradually cancelled by A. 1742. The ordinary Charges of Government may be about 40,000 l. New England Currency per Ann. Exchange with Great Britain 450 per Cent. Advance, or five and an half New England for one Sterl.

RHODE-ISLAND, their first Emissions were A. 1710, towards paying more readily their Quota of Charges on the Expedition against Port Royal (now Annapolis Royal) in Nova Scotia, and have emitted from Time to Time, in all 399,300 l. whereof only 19,300 l. upon Funds of Taxes for Government Charges, and 360,000 l. upon Loans, whereof there is at present outstanding (all upon Loans) 330,000 l. circiter; which, if their publick Faith should chance to be kept in Time coming, will not be finished cancelling until A. 1759. The Interest of those publick Loans defreys the Charges of Government, and of their Towns.

I shall embrace this Opportunity of exemplifying the Iniquity of Colony publick Bills of Credit by the Instance of Rhode-Island, a small Colony containing about 18,000 Souls, under an old Charter very lax and general; they admit of no Instructions from the King, Council, or Board of Trade and Plantations; the King having no Representative or Commissioned Governour in their Legislature. This handful of People have lately made a very profitable Branch of Trade and Commerce by negociating their own Paper Money in various Shapes: their Money being Loans of Paper Credit called Bills, from their Edition: current; Page: [942] Government to private Persons upon Land Security; to be repaid not in the same real Value, but in the same depreciating fallacious Denominations.

1. Their first Loan was A. 1715 for 10 Years, but have by subsequent Acts postponed and prolonged the Payments, so that the last Payment was A. 1738, Thus A. 1715 Exchange was at 65 per Cent. with England, A. 1738 Exchange was at 400 per Cent. Advance; that is for 100 l. Sterl. Value received, they pay only after the Rate of 33 l. Sterl. Suppose further, that the same Person upon the same Land Security, borrows again of the new Emission A. 1738, this 33 l. Sterl. value; and, as formerly by repeated large Emissions, Exchange becomes as at present in North-Carolina 10 for 1 Sterl. by A. 1758 the Period of this Loan, the original 100 l. Sterl. Value will be redeemed with 16 l. Sterl. Value. And if this Paper Money Loan Trade, could be supposed to continue, the Land Security would gradually vanish, the Land redeem’d and the Debt paid with nothing.

2. They who take up this Loan Money are called Sharers; and for the first ten Years pay into the Treasury 5 per Cent. per Annum Interest; and for the other ten Years pay 10 per Cent. per Annum of the Principal, without Interest. The Sharers let out this Money, in their own & neighbouring Colonies at 10 per Cent. for the said twenty Years (some let it at a higher Interest) is at the Expiration of the twenty Years 300 l. for every 100 l. Loan, Principal and simple Interest; for which only 150 l. is paid into the Colony Treasury, & 150 l. is clear Gain: So that in this Shape for every 100,000 l. Emission, their People in the space of twenty Years, have after the Rate of 150,000 l. clear Profits.

3. In another Shape; upon a new Emission, Interest is made with the Managers, to obtain Shares in the Loan: the Sharers immediately sell (or may sell) their Privilege, as it is called, for ready Money Praemium; at the Emission A. 1738 the Praemium was 35 per Cent: that is, the Emission of 100,000 l. does immediately produce after the Rate of 35,000 l. ready Money profit.

4. Rhode-Island purchases from their neighbouring large Province of the Massachusetts-Bay, all Sorts of British and Foreign Goods with this Paper Manufacture which cost nothing, which enables them to rival us in Trade, particularly in that valuable Branch of it to the West India Islands, and to which by some unaccountable infatuation we give a Currency; while at the same Time our Merchants cannot make Returns by any Colony Paper Money, for these Goods; it is true; sometimes they bring us Molasses from the Sugar Islands. We have a late good Law against the currency of such Edition: current; Page: [943] Bills, but not being put in Execution, is of no Effect. The only Reason that can be assigned for giving the Rhode-Island Bills of Currency, is, that they are received in all Payments by Consent: The same Reason may hold good for passing of any Bills, even the 500,000 l. lately proposed without Fund or Period; and of counterfeit Bills, as in Fact some Bills of Connecticut of small Denominations, tho’ known to be Counterfeit, have a currency.

CONNECTICUTT, a Charter Colony of industrious Husbandmen, having, with much Prudence emitted only small Quantities of Bills; Silver would have continued with them at 8 s. per Oz. as it did in New York their neighbouring Government westward, if their People had not given a Currency to the publick Bills of their Brethren, in the neighbouring Colonies of New England. Connecticut emitted Bills only for the present necessary Charges of Government upon Funds of Taxes, until A. 1733, having granted a Charter for Trade and Commerce to a Society in New-London, this Society manufactured some Bills of their own, but their Currency being soon at a Stand; the Government were obliged in Justice to the Possessors, to emit 50,000 l. upon Loan to enable those concerned in the Society to pay off their Society Bills in Colony Bills; their Charter was vacated, and a wholsome Law enacted, That for any single Person, or Society of Persons to emit and pass Bills for Commerce or in imitation of Colony Bills, Penalty should be as in Case of Forgery, or if counterfeiting Colony Bills. Their first Emission of Colony Bills was in A. 1709, and may have emitted in all 155,000 l. whereof only the above 50,000 l. upon Loan. There are at present outstanding about 60,000 l. which will be gradually cancelled by A. 1742, if the present good Assistants (Council) continue to be annually elected. They have at Times been guilty of emitting small Sums for the present Supply of Government (by oversight and not with any sinister Design) without annexing a Fund or Period; but have soon after been cancelled by Taxes. Their ordinary Charge of Government does not exceed 3,000 l. New England Currency per Annum.

N. B. This promiscuous Currency in the four Governments of New England, that is, one Colony giving a Currency to the enormous Paper Credit Emissions of one of the other Colonies, has the same Effect as if that Colony did emit Bills of its own: thus the King’s Instructions to the commissioned Governments are evaded, by the popular Charter Governments, rendring them of no Effect, having as it were no Dependance on the Crown. A Parliamentary Regulation is the only adequate Remedy.

Edition: current; Page: [944]

NEW-YORK chancered Proclamation Money to 8 s. per Oz. of Silver, at the same Time and for the same Reasons, as has been said of Massachusetts-Bay Government: A. 1709 towards the Charge of an intended Expedition against Canada (upon this same Occasion, began the first Paper Money Emissions of New Jerseys & Connecticut) they issued 13,000 l. publick Bills of Credit bearing Interest: A. 1710 the Interest was taken off upon pretence, that it occasion’d them to be hoarded up as Bonds, and did frustrate their Currency; and 10,000 l. more Bills without Interest were issued. All these Bills being small Sums and faithfully paid off & sunk in Taxes, did not affect Exchange with England.

A. 1714. By collusion of the Governour, Council and Representatives, a large Sum of 27,680 l. in Bills, was issued, to pay off Government Debts, whereoff some Part consisted of their own ill founded Claims; gradually to be cancelled by Excise on Liquors to A. 1734: these were issued with the Royal Assent.—A. 1717 for paying of Government Charges & Debts were issued 16,607 l. without waiting for the Royal Approbation, gradually to be cancelled by a Duty upon Wines and Rum for 17 Years and Excise continued from A. 1734 to A. 1739: this Emission was connived at by the Boards of Council, Trade and Plantations at Home; lest many Persons who had bona fide received them for valuable Considerations, might suffer by their being suppressed. Which Indulgence this Government have abused, by never waiting for the Royal Assent in their future Emissions.

In the intermediate Years were some small Emissions for Charges of Government, and regularly cancelled.—A. 1734 issued 12,000 l. in Bills for Fortifications to be gradually sunk before A. 1746 by Imposts.—A. 1738 issued 48,300 l. Bills, whereof 40,000 l. upon Loan; all to be sunk and paid in by A. 1750: this rais’d Exchange to 70 per Cent. and Silver to 9 s. 3d. per Oz. The Lieut. Governour to obtain of the People a Governour’s Allowance consented to humour them in this Emission.

A. 1739, the Funds being otherways applied, it was found that contrary to publick Faith, 15,000 l. of the Emissions A. 1714 & 1717 were still current, and fifteen Years more upon Excise were enacted to cancel them. So that now there is about 70,000 l. in Bills of New-York current.

NEW JERSIES, A. 1709 issued 3,000 l. publick Bills of Credit upon the intended Expedition against Canada; and A. 1711 upon another intended Canada Expedition 5,000 l. more Bills were emitted, to be cancelled gradually Edition: current; Page: [945] before A. 1713; but were by Acts of Assembly postponed, & many Bills of both Emissions were currant A. 1723.

A. 1724 emitted 40,000 l. in Bills whereof some small Part was to cancel the old outstanding Bills, and the rest upon Loan, to be paid in gradually in twelve Years. This being too large an Emission for a small Colony, their Bills became of less Value than those of New-York; but being yearly in good Faith, sunk, they became equal, and after some Years 2 s. in the Pound better than New-York Bills. This is a Demonstration, that the Quantity of Paper Money increasing or faithfully decreasing, sinks or raises the Value of it.—A. 1733, was issued 20,000 l. more upon Loan to be gradually paid in sixteen Years: this Emission sell their Bills to near Par with New-York.—A. 1734, the first Loan of A. 1724, being near sunk, the Assembly enacted a 40,000 l. Loan, but was not issued till A. 1736, having then obtain’d the Royal Approbation, and passed scarce at Par with New-York; but upon the New-York Emission of 48,300 l. A. 1738, the Jersey Bills are 6 d. in the Pound better than New-York Bills, and 1 s. in the Pound better than those of Pensylvania.

The Jersey Bills keep their Credit better than those of Pensylvania and New-York for these two Reasons, 1. New-York Bills not being current in Pensylvania, and Pensylvania Bills not current in New-York; but Jersey Bills current in both, all Payments between New-York and Pensylvania are made in Jersey Bills. 2. In the Jerseys failure of the Loan Payments, at the Days appointed; is confessing to Judgment, and thereafter only 30 Days Redemption of Mortgages is allowed.

The 5 per Cent. Interest of publick Loans defrays all Charges of Government. In the Jerseys at present about 60,000 l. in publick Bills current all upon Loan.

In the two Governments of PENSYLVANIA their Currency continued Silver Proclamation Value, until A. 1723: The three Upper Counties (strictly called Pensylvania) emitted upon Loan 15,000 l. in Bills, and A. 1724 emitted 30,000 l. more; but A. 1726 finding that in strictness of the two preceeding Acts 6100 l. part of the Capital of 45,000 l. was sunk the Encouragers of Paper Money procured an Act for re-emitting what should be annually paid in of the remainder by the Borrowers; and A. 1729 emitted 30,000 l. which have generally been continued out by re-emitting Acts from Time to Time. A. 1739 they made an Addition of about 11,100 l. upon Loan on the same Terms: so that at present they have 80,000 l. all upon Loan. Edition: current; Page: [946] Exchange with London 75 per Cent. before Emissions of Paper Money it was only 33 per Cent.

The three Lower Counties have also Paper Currency in small Quantities, and upon the same footing.

In Maryland Silver continued at Proclamation Value until A. 1734, with a considerable Concomitant Truck Trade as a Medium, viz. Tobacco; they then emitted 90,000 l. in Bills, which tho’ payable to the Possessors in Sterling well secured, the Sum being too large, and the Periods too long, viz. three partial Payments of 15 Years Periods each; Exchange immediately rose from 33 to 100 and 150 per Cent.

VIRGINIA has the same considerable Truck Trade Medium, viz. Tobacco; and with regard to Silver Currency have kept their Integrity better than the other Colonies. It is true, Lord Culpeper their Governour, about A. 1680, by an arbitrary Proceeding in the quality of the King’s Representative, did, by virtue of his own Proclamation, alter the Value of their Silver Coin for his own Profit, to defraud an English Regiment then paid off and disbanded, (this Regiment was sent from England to quell an Insurrection or Mutiny in Virginia under Bacon) but soon finding, that it occasioned much Confusion in Business, and did particularly affect his own Perquisites; he reduced it again to the former Standard. Silver a few Years ago was 6 s. a Crown British, or 6 s. 3 d. per Oz. Silver, at present it is 6 s. 8 d. per Oz. of Silver, and 5 l. per Oz. Gold; is 25 per Cent. worse than Sterling.

NORTH CAROLINA, an inconsiderable Colony scarce capable of any Fund for Paper Emissions; have notwithstanding 40,000 l. upon Loan, and 12,500 l. upon Funds of Taxes. At present Exchange is settled by their Legislature at 10 North Carolina for 1 Sterling but in drawing upon London 12 to 14 for 1 St.

In SOUTH CAROLINA their first Emission of publick Paper Credit was A. 1702, towards the Charges of an Expedition against St. Augustine. Their Legislature have been most notoriously guilty of breach of publick Faith in not cancelling their Bills. Besides the Emissions for ordinary Charges of Government, and their Expeditions against the North Carolina Indians A. 1711, and against the Southern Indians A. 1715, they have large Sums upon Loans. They may have at present outstanding about 250,000 l. in Province Bills (whereof above 100,000 l. without Fund or Period) besides private Notes of substantial Merchants negociated, payable upon Demand in Province Bills; they have also a valuable Truck, viz. Rice. Their present Exchange Edition: current; Page: [947] with London as settled by their Legislature to ascertain the Value of Debts contracted, is 8 South Carolina for 1 Sterling.

In the new Colony of GEORGIA, their Currency are the Trustees sola Bills Sterling: the Funds are the Allowances by Parliament, and private Subscriptions to carry on the Settlement.

PROVIDENCE including the rest of the Bahama Islands is scarce reckoned a Colony.

In BERMUDAS a Colony of Sea Carriers; their Currency continues Proclamation Value.

BARBADOES: Their Currency is Proclamation Value, by weight 6 s. 10 d. farthing per Oz. Silver. By the Advice of Mr. W. from New England, they made the Experiment of a Paper Currency, and emitted 16,000 l. upon the Negroe Tax Fund, and soon after 80,000 l. more upon Loan; these Bills immediately fell 40 per Cent. below Silver, and upon Complaint were directly suppressed by an Order from England; and some of the Possessors who gave them a Currency have Quantities of them to show as a Monument of this Folly, and of Paper Money becoming waste Paper.

Here as in all our Sugar Islands, Sugar according to its Quality at the Market Price, serves as a Trade Medium to pay Debts. The Par of Exchange is 33 per Cent. but generally lower and in favour of Barbadoes.

The CARRIBEE LEEWARD ISLANDS of Antegoe, Newis, St. Christophers, Montserrat, & the Virgins, have depreciated from Silver Proclamation Value to 8 s. per Oz. in the same Manner as has been said of Massachusetts-Bay; but never proceeded to that Fraud, Paper Money: light Pieces of Eight are current by Tale. Exchange 50 per Cent. Advance.

In JAMAICA formerly a heavy Piece of Eight current at 5 s. but light Money taking Place at a Currency; the heavy Money was ship’d off in course of Time at 10, 15, 20, & 25 per Cent. as at present, Difference. At this Time a light Piece of Eight passes at 5 s. a heavy Piece of Eight at 6 s. 3 d. and Silver at 7 s. 2 d. per Oz. The Par of Exchange with London is about 36 per Cent. difference, but generally higher and in favour of London.

Thus we see, that particularly in our Paper Money Colonies, the Currencies have incredibly depreciated from Sterling, and from one another. Exchange with Great Britain being at this Time (Febr. 1739) in New England 450 per Cent. in New-York, Jerseys, & Pensylvania 70 to 75 per Cent. in Maryland 150 per Cent. in North Carolina 1100 to 1300 per Cent. in South Carolina 700 per Cent. worse than Sterling.

Edition: current; Page: [948]

To make a Bill or Note bearing no Interest, and not payable till after a dozen or score of Years, a legal ready Money Tender (under the highest Penalties as in New-York and Jerseys) in Payment of Debts, is the highest of despotick and arbitrary Government: France never made their State Bills a common Tender. Our Paper Money Colonies have carried the Iniquity still further; the Popular or Democratick Part of the Constitution are generally in Debt, and by their too great Weight or Influence in Elections, have made a depreciating Currency, a Tender for Contracts done many Years before; that is, they impose upon the Creditor side in private Contracts, which the most despotick Powers never assumed. An Instance of a still further arbitrary Proceeding in relation to Paper Money was an Act of Assembly in New Jerseys A. 1723, whereby Executions for Debt were stayed until Paper Money should be issued.

The Mystery of the infatuation of our Colonies running Headlong into a depreciating Paper Currency may be this: In many of our Plantations of late Years, by bad Management and Extravagancies, the Majority of the People are become Debtors, hence their Elected Representation in the Legislature have a great Chance to be generally of the Debtors Side: or in other Words, the Representatives being generally Freeholders, and many of them much in Debt; by large Emissions their Lands rise in Denomination Value while their Debts becomes really less, and the Creditor is defrauded in Part of his Debt. Thus our Colonies have defrauded more in a few Years, than bad Administrations in Europe have formerly done in some Centuries. The great Damage done to the generous Merchants at Home, and to the industrious fair Dealers amongst our selves; call aloud, for some speedy and effectual Relief from the supreme Legislature the Parliament of Great Britain.

There is an Argument, which tho’ not much attended to here, may be of some Weight at Home, viz. That the Government at Home ought to connive at Paper Money in the Colonies, because by indulging them in this Error, all the Silver which they acquire from Time to Time is sent to Great Britain; and by the chimaera of a fallacious Cash, Extravagancies are encouraged in favour of a great Consumption of British Goods: This ought to be an Argument with us against that Paper Currency, which tends to turn the Ballance of Trade so much against us. It is true, That Great Britain naturally ought to reap some Profit by its Plantation Improvements: but a good Husbandman improves his Lands not by working them out of Heart (as the Term is) but Edition: current; Page: [949] by manuring them, that they may yield the better Crops: besides, what the British Merchants lose in their Returns by the Colony Bills depreciating, and by the Bankruptcy of their Factors and Dealers here; is much more then what Great Britain gets, on the abovesaid Accounts.

In the Sequel of this Discourse, I shall 1. Enumerate the Inconveniencies and bad Effects of our large Emissions of Paper Money. 2. Endeavour to remove the Prejudices which some designing Men have infused into the Minds of the Populace in favour of Bills of Credit. 3. Consider several Projections or Schemes to rectify our Currency and present Circumstances, or to prevent their growing worse.

The Mischiefs arising from a large Paper Currency are,

I. With regard to the particular and immediate Sufferers thereby.

1. The Labourers and Trades-men, who in all Countries, are the Hands which feed the Belly of the Common Wealth, and therefore deserve our chief Regard. How much they have suffered and continue to suffer is obvious: For Instance, a Carpenter when Silver was at 8 s. per Oz. his Wages were 5 s. a Day all Cash. The Town House A. 1712 was built at this Rate; whereas at present A. 1739 from the bad Influence of Paper Money Silver being 29 s. per Oz. he has only 12 s. a Day, equal only to 3 s. 4 d. of former Times; and even this is further reduced, by obliging him to take one half in Shop Goods at 25 per Cent. or more Advance above the Money Price: this Iniquity still grows, by reducing the Goods Part to the least vendable; the Shopkeeper refusing to let them have Provisions, West India Goods, or Goods of Great Britain that are in Demand.

To make the Case more familiar, Suppose a Tradesman laying in his Winter Store, when Wages were at 5 s. with one Day’s Labour he purchases 15 Pound of Butter being 4 d per Pound (I use Butter because it rises the most uniformly of all Provisions) at present his 12 s a Day purchases only 7 Pound of Butter at 20 d a Pound. The Clergy or settled Preachers to Congregations in Boston, no Offence in classing them with Labourers, when Silver was at 5 s. had 3 l. per Week, at present Silver at 29 s. per Oz. they have only 6 l. to 8 l. equal to 40 s. of former Times.

The Shopkeepers are become as it were Bankers between the Merchants and Tradesmen, and do impose upon both egregiously. Shop Notes that great and insufferable Grievance of Tradesmen, were not in Use until much Paper Money took Place: this Pay in Goods which generally are of no necessary Use (Provisions and West India Goods at this Time are removed Edition: current; Page: [950] from that Denomination) encourage Extravagance in Apparel and Furniture much above our Condition.

2. The Merchants of Great Britain Adventurers to New England, because of their largest Dealings have suffered most. Their Goods are here generally sold at a long Credit, while the Denominations of the Money in which they are to be paid, continues depreciating; so that they are paid in a less Value than was contracted for: thus our Bills have successively depreciated from 8 s. per Oz. Silver A. 1713, to 29 s. in this Year 1739; that is, if we could suppose the same Person to have constantly followed this Trade (without extraordinary Hits) for that space of Time, he must have reduced his Estate after the rate of 8 s. only for 29 s. For every Shilling in the Pound that Silver rises in Price, or, which is the same, for every Shilling in the Pound that the Denomination of our Paper Money depreciates, the Creditor actually looses 5 per Cent. of his Debt.

There have been from Time to Time seeking Factors, who to procure Business from Home, have entred into Engagements which could not possibly be complied with: these having little or nothing of their own to loose, soon make desperate Work of it; become Bankrupts, and from a general insensibility of discredit, do notwithstanding keep their Countenance as before.

Many Factors to dazle their Employers for a Time, and in the mean while to procure more Consignments; send Home a high Account of Sales, by the Shopkeepers giving a great Advance in Consideration of a very long Credit, and to be drawn out in Shop Notes. This Practice has so much prevailed, that it is now become a fixed tho’ pernicious and ruinous Custom.

As Paper Money pays no Debts abroad, the Factor is obliged to give an extra Quantity of it, to purchase Silver, and other Returns; which can be exported, to satisfy Debts; in this Shape also the Merchant becomes a Sufferer.

3. Widows, Orphans, Funds for Charity at Interest, and all other Creditors; by Bonds, Notes, & Book Debts, acquired by Industry, good Management, and Frugality; are great Sufferers from Time to Time: For Instance, from Autumn A. 1733 to Autumn A. 1734 Silver rose from 22 s. to 27 s. per Oz. this was a Loss of 23 per Cent. of the Principal.

II. The repeated large Emissions of Paper Money are the Cause of the frequent rise of the Price of Silver and Exchange; that is, of the publick Bills of Currency depreciating in all the Paper Money Colonies; which do as Edition: current; Page: [951] regularly follow the same, as the Tides do the Phases or course of the Moon. When no larger Sums are emitted for some Time, than what are cancelled of former Emissions; Silver and Exchange are at a Stand; when less is emitted than cancelled (which seldom happens) Silver and Exchange do fall. This is plain to a kind of Demonstration, from the Instance in the History of our Paper Money Emissions in New England.

After Silver had rose A. 1706 to 8 s. per Oz. by light Pieces of Eight superseding the heavy Pieces; it continued at that Rate, while Paper Emissions did not exceed a due Proportion to the current Silver. A. 1714 we emitted 50,000 l. upon Loan, and A. 1715 in Rhode-Island 40,000 l. besides Emissions on distant Funds for Charges of Government; in the Autumn A. 1715 Silver became 15 per Cent. Advance above 8 s. that is about 9 s. 2 d. per Oz. Massachusetts-Bay A. 1717 emitted 100,000 l. upon Loan and a very long Period; Silver rose to 12 s. per Oz. A. 1721 Massachusetts-Bay emitted 50,000 l. and Rhode-Island 40,000 l. upon Loan, Silver A. 1722 became 14 s. per Oz. From that Time a chargeable Indian War, required large Emissions, and Silver rose to 16 s per Oz. it continued at this Rate till A. 1728, Emissions not being larger than Cancellings. A. 1727 Massachusetts-Bay emitted 60,000 l. and A. 1728 Rhode-Island emitted 40,000 l. upon Loans; Silver became 18 s. per Oz. A. 1731 Rhode-Island emitted 60,000 l. upon Loan. (N. B. Besides the several Loans in the course of this History, all the Charges of the four Governments were defrayed by Paper Emissions) and Silver became A. 1732, 21 s. per Oz. A. 1733 Massachusetts-Bay emitted 76,000 l. upon Funds of Taxes, Rhode-Island 104,000 l. upon Loan and Taxes, Connecticut 50,000 l. upon Loan, and A. 1734 Silver became 27 s. per Ounce. From A. 1734 to A. 1738 more Bills were cancelled than emitted, Exchange fell from 440 to 400 per Cent. Advance. A. 1738 Rhode-Island emitted 100,000 l. upon Loan, Silver rose from 27 s. to 29 s. per Oz.

In New England, as in all other trading Countries, from some particular Accidents and Circumstances, there happened at Times, some small fluctuations in Exchange, without any regard to Emissions of Paper Money. At all Times, when Returns in Ship Building, Whale Oil and Fins, Naval Stores &c. turn out well at Home; Silver and Exchange here suffer a small fall: at other Times when these prove bad Returns, Silver and Exchange rise a small Matter; the most noted Instance was A. 1729, when the usual Returns to Great Britain turned to bad Account; the Merchants from Home, directed their Factors here, to make Remittances in Silver or Exchange only, and at Edition: current; Page: [952] any Rate; together with an Agency from this Province and that of Connecticut, fitted out with a Silver Supply; Silver rose very considerably, but after a few Months fell again to the former Price.

The Instance of Barbadoes must put this Assertion beyond all Dispute with sober thinking honest Men. A. 1702 by the Perswasion of Mr. W. from New England, Barbadoes emitted 16,000 l. Bills of publick Credit on a Fund of 3 s. 9 d. Negroe Tax; at first they passed at a Discount, but no more being emitted, and the Period of cancelling being short, they rose again to near Par: this encouraged them to make an enormous Emission of 80,000 l. Bills on Land Security at 4 per Cent. Principal payable after 5 Years: These Bills immediately fell 40 per Cent. below Silver: by an Order from Home, they were soon suppressed, and their Currency became Silver Value as before. That Province has ever since kept their Currency up to Proclamation Value, Ballance of Trade in their Favour, Exchange to Great Britain being generally under 33 per Cent. the Par.

III. Large repeated Emissions of publick Bills of Credit called Paper Money, is no addition to the Medium of Trade. No Country can have an indefinite or unlimitted Credit; the further a Country endeavours to stretch its Credit beyond a certain Pitch, the more it depreciates. The Credit of a Country may be compared to that of a private Trader; if his Credit is equal to 100,000 l. Sterl. his Notes of Hand for 100,000 l. will be as good as Silver; if it be known that he passes Notes of Hand for 200,000 l. Sterl. their full Credit will be suspected and eventually be worth no more than his real Credit 100,000 l. Sterl: if he can be supposed to utter 500,000 l. Bills or Notes, his 5 l. Note will be worth only 20 s. Sterling.

In New England A. 1713 there were about two thirds Bills to one third Silver current, equally at 8 s. per Oz. Silver Value; there being an Allowance of 5 per Cent. in all publick Payments in favour of Bills only, gave them a Credit beyond their natural Stretch. At that Time the publick Bills of the four Provinces were about 175,000 l. at 8 s. per Oz. Silver Value (we use always the nearest round Numbers) is 438,000 Oz. Value, with 219,000 Oz. of Silver Currency is 657,000 Oz. Silver Value. A. 1718 the publick Bills of New England were 300,000 l. (Silver all drove away by the worse Currency of Bills) at 121. per Oz. Silver; is 500,000 Oz. Value in Silver. A. 1731 New England publick Bills were 470,000 l. at 20 s. per Silver, is 470,000 Oz. Silver Value. A. 1730 the current Paper Money of New England was 630,000 l. at 29 s. per Oz. Silver is in Value 434,000 Oz. Silver. Here it is plain that the Edition: current; Page: [953] more Paper Money we emit our real Value of Currency or Medium becomes less, and what we emit beyond the trading Credit of the Country does not add to the real Medium, but rather diminishes from it, by creating an Opinion against us, of bad Oeconomy and sinking Credit.

A Country may exceed in any Commodity or Medium, excepting in that universally Staple Commodity and Medium Silver; and a smaller Quantity of any other Commodity or Medium will turn to the same or better Account than a larger. In Holland upon a too large Importation of Spices, they destroy some Part, to keep up the Value of Spices. Not long since in Virginia, finding that Tobacco (their Currency as well as Export) by its too large Cultivation began to depreciate; by Act of Assembly they restricted it to 1000 l. wt. per Annum per Tythable. In Maryland A. 1734 & A. 1735 for the same Reason they burnt yearly 150 l. wt. per Rateable. If our House of Representatives allow our Paper Money to be cancelled in Course, and be sparing in the Manufacture of more; the Value of the remainder, would be equal to the Value of the whole now current, or proposed to be added to the Currency.

It is therefore vain and inconsistent to make Provincial or Municipal Bills of Credit, for a Medium of general Trade: Merchants know how to find their own Tools or Medium of Trade, better than any Civil Administration can prescribe: in Fact, they who call out loudest for this Paper Medium, are not our large Traders; but such as would take up Money at any bad lay, viz. the Idle, those in desperate Circumstances, and the Extravagant; who never can have any other Claim to Money but by Fraud; we must except some who tho’ naturally honest are misguided. Publick Bills of Credit in a proper Sense are only to defray the incident Charges of Government which may accrue, before the proper Ways and Means of Taxes can take Place; but so soon as can be, to be cancelled by those Taxes. We know of no Country in Europe, where Exchequer Notes, State Bills, or other Bills of publick Credit, have been issued by the Government for a Medium of Trade.

IV. This infatuation in favour of Paper Money has had a mutinous bad Effect upon the Civil Government, in several of our Colonies. The Representatives of the People, have frequently refused to provide for the necessary Charges of Government, and other wholesome Laws; because the Governours & Councils would not (in breach of their Instructions from the Crown) concur in emitting large Sums of Paper Money to defraud the industrious Creditor and fair Dealer. I shall mention only a few Instances. In S. Carolina Edition: current; Page: [954] A. 1719, the People deposed the Proprietors Governour on this Account: it is true, the King did not much resent this Mutiny; perhaps, that the Proprietors might be weary of their Property and Government; and accordingly seven of the eight Proprietors, for a small Consideration, did A. 1729 resign and sell to the Crown: Upon Governour Johnson’s arrival in S. Carolina A. 1731, there had been no Supply granted in the four preceeding Years. The Government of the Massachusetts-Bay, has from Time to Time been distressed, by our Representatives refusing Supplies for the necessary Charges of Government, and other publick Affairs neglected on this Account: Our present Governour’s Fortitude and steady Adherence to the King’s Instructions, & his having shortned the long Periods of Emissions for Charges of Government (I am under no Obligation to flatter) are highly laudable. New Hampshire Representatives for five Years preceeding A. 1736 granted no Supply. As the French humour of building Forts, to protect their Settlements against an Enemy is perverted to the enslaving of the Subject; and as the Spanish humour of Devotion, in building Churches and Convents, is perverted, by their becoming Nurseries of Idleness and other Vices; so the English Liberty and Property of the Subject, in many of our Plantations are sometimes abused, to levelling and licentiousness; it is true, all Men are naturally equal, but Society requires subordination.

V. Long Credit, is not one of the least of the bad Effects of Paper Money. People run in Debt, endeavour after a long Credit, and refuse paying their Debts when due; because while Bills are continually depreciating, the longer the Debt is outstanding, they pay their Creditors with a less and less Value, than was contracted for. Sir Alexander Cumings in his Defence wrote A. 1729, says, that in his Time in South Carolina, pay after twelve Months, was reckoned as ready Money. Long Credit thus obtained, does in its turn, forward a bad Currency, they go Hand in Hand. A Creditor after being long out of his Money, chuses rather to take the bad Currency and run the Risque of passing it off again (as was the Case of the Rhode-Island Emissions A. 1733 & 1738) than of losing his Debt, if another Creditor should take it, and the Debtor afterwards become Insolvent.

With ready Money or short Credit, Business goes on brisk and easy. Long Credit occasions the unthinking of all Conditions and Occupations, to involve themselves. A Merchant over-trades himself, a Shopkeeper buys more Goods, and at a greater Advance than he can afterwards comply with; the Countryman buys and Mortgages Lands, to his final Ruin.

Edition: current; Page: [955]

VI. Insensibility of Discredit, does naturally follow long Credit: All Shame and Modesty is banished even in the Creditor; who tho’ formerly a modest forbearing Man, is now obliged to Dun incessantly or lose his Debt. Ready Money and short Credit, give a quick Circulation; the quicker the Circulation, the less Quantity of Medium is required to carry on the same Trade and Business: long Credit, and insensibility of Discredit, have the contrary Effect. There are at present extant of New England publick Bills of Credit about 630,000 l. a much larger Sum than ever was extant at any other Time; yet Money was never so scarce and Debts worse paid: People chuse rather to hoard it up, and wait for better Times, than put it out and not be able to recover it again, but after an unreasonable Length of Time and much Trouble; Money hoarded up, is the same as if not in being, as to Currency. If a Shopkeeper does not clear with his Merchant, till after two or three Years due; he is notwithstanding esteem’d as honest as his Neighbour: Our Courts are full of plain Bonds, and Notes of Hand; Appeals on them are allowed, Executions delay’d &c. This insensibility of Discredit, breaks all Friendship; it makes a Man cautious of lending his Money to his best Friend, and nearest Relation.

A general Clamour for a depreciating Paper Currency, is a certain Sign of the Country being generally in bad Circumstances, that is, in Debt; because all Creditors who by their Industry and Frugality have acquired Rents, Bonds, Notes and Book Debts, loose by its depreciating; and the Debtors (the Idle and Extravagant Part of the People) come off easy by the Creditors loss. Seeing they who are desperately in Debt, and want to pay a smaller Value than contracted for, for they who have nothing to lose, are generally of the Party for Paper Money; this ought to be a strong Prejudice against it, with sober thinking Men.

We have some prevailing Customs and some Laws in force, which seem to encourage this insensibility of Discredit in Debtors; 1. A Maxim amongst Shopkeepers; That the most ready Way to grow rich, without any Expence of Industry; is, to run boldly in Debt, procure a long Credit, after Time of Payment is elapsed to bear Dunning with a good Face, and finally to let the Debt take its full Course in the Law, which further requires twelve Months or more, at a small Cost: Notwithstanding this Chain of Iniquity, the Debtor keeps his Countenance, and many Factors continue to trust him with their Employers Goods as formerly. 2. Estates too easily allowed to be represented as Insolvent; whereby Creditors are defrauded of some Part of their Due. 3. Edition: current; Page: [956] Appeals upon plain Bonds, Notes of Hand, and Defaults, to the great Relief of the fraudulent Debtor, and Damage of the honest Creditor. 4. Sheriffs impune delay of Executions, while the Creditor is allowed neither Interest not Damage upon the Debt. 5. The too general Laws for the relief of insolvent Debtors, whereby the Fraudulent, the Idle, and the Extravagant, when sent to Gaol; are too soon, and at too easy a Rate turned loose to follow the same Courses. What I have here said, cannot be understood in contempt of our Legislative Authority; because of that valuable Privilege belonging to our Constitution, viz. of repealing, amending, or explaining what Laws from Experience may be found to require the same.

The Arguments current amongst the Populace in favour of Paper Money are,

I. In most of the Paper Money Colonies one of the principal Reasons alledged for their first Emissions; was, to prevent Usurers imposing high Interest upon Borrowers, from the scarcity of Silver Money, it is true, that in all Countries the increased Quantity of Silver, falls the Interest or Use of Money; but large Emissions of Paper Money does naturally rise the Interest to make good the stoking Principal: for Instance, in the Autumn A. 1737 Silver was at 26 to 27 s. per Oz. but by a large Rhode Island Emission, it became in Autumn 1739, 29 s. per Oz. this is 7 per Cent. loss of Principal, therefore the Lender to save his Principal from sinking requires 13 per Cent. natural Interest (our legal Interest being 6 per Cent.) for that Year. In Autumn A. 1733 Silver was 22 s. per Oz. by large Emissions it became 27 s. in the Autumn A. 1734; is 22 per Cent. loss of Principal, and the Lender to save his Principal requires 28 per Cent. natural Interest for that Year. Thus the larger the Emissions, natural Interest becomes the higher; therefore the Advocates for Paper Money (who are generally indigent Men, and Borrowers) ought not to complain, when they hire Money at a dear nominal Rate.

If Bills were to depreciate after a certain Rate, Justice might be done to both contracting Parties, by imposing the loss, which the Principal may sustain in any certain space of Time (the Period of Payment) upon the Interest of a Bond or Price of Goods: but as depreciations are uncertain, great Confusions in Dealings happen.

II. That the Merchants arbitrary Rise upon the Price of Edition: current; Page: [957] Goods, does from Time to Time depreciate the Denominations of our Paper Money, is imposed upon the unthinking Part of the People, as a certain Truth, by designing Men. It is certain, that in all Countries of Europe, where by Recoinages or Proclamations, the current Specie has been debased; the nominal Price of Goods did naturally rise in Proportion: is it not more natural to say, that formerly in France their recoinings or lessening the Value of their Denominations, did rise the Price of Goods; than to say that the Rise of the Price of Goods, was the Cause of their Recoinages. A continued Rise on Goods in general is from a depreciating Medium; but fluctuations in particular Goods, are from the Quantities and Demand; thus A. 1739 Provisions the most Staple of all Commodities, have been cheap, viz. Wheat at 10 s. per Bushel, Silver being 29 s. per Ounce, whereas A. 1738 Wheat was at 18 s. per Bushel, when Silver was only 27 s. per Oz.

When a large Emission can be foreseen the Price of Goods rises; because being sold upon long Credit, the effects of the Emission will take Place before the Time of Payment: hence it is that generally the Price of Goods Advances, before Exchange and Silver do rise; Exchange and Silver being bought with ready Money, cannot take Place until the Addition is made to the Currency by this new Emission, and then only gradually as the Merchant receives his Pay; thus the large Emissions of A. 1733 did not bring Silver to its heighth, 27 s. per Oz. until Autumn, A. 1734: Hence proceeds that inculcated Fallacy of the Advance on Goods rising the Price of Silver and Exchange. The same Reason for Lenders of Money, imposing a high Interest, holds in the Rise of the Price of Goods: Custom has given a long Credit, Insensibility of Discredit, makes it still longer, and before the Merchant is paid, the Currency is become much depreciated.

III. The Sticklers for Paper-Credit requiring long Periods, as well as large Emissions is a most unnatural Desire. Some of the Massachusetts-Bay Loan, of A. 1717 is still outstanding A. 1739: The several Rhode-Island Loans do not terminate in less than 20 Years: By this natural Contrivance they oblige Posterity to supply the Extravagancies of their Parents and Ancestors, instead of the common and natural Instinct of Parents providing for their Children.

IV. It is not repeated large Emissions of a base Paper-Currency, but our Imports exceeding our Exports, that occasions Silver to be ship’d off in Ballance; therefore we are not to expect a Silver-Currency supposing all Bills cancelled. Before Paper-Money took Place in New England, Silver abounded in Currency as much and perhaps more, than in many of our Colonies: Our Exports are always in Demand, viz. Ship-building, all Branches of Fishery, Naval-Stores to Great Britain, Logwood from the Bay of Honduras, Lumber, Stock, and other Provisions to the other Colonies; and (Bermudians excepted) our Navigation is the cheapest of all Carriers. Silver began to be Edition: current; Page: [958] generally ship’d off as Paper became the Currency; which gave the Merchant the Liberty of shipping off his Silver as Merchandise, which otherways he must have kept as Cash, seeing no Business can be carried on to Advantage without Cash. In all Countries if a bad Medium is introduced, People take care to secure the better Mediums and they are no more current.

The Fallacy of Quantities of Paper-Money, has increased our superfluous Imports, much beyond what was in former Times. The seeking Factors upon a large Emission, advise the Merchant in Great Britain, that Money being now very Plenty, a large Quantity of Goods will sell: Accordingly a Glut of Goods is sent to New England, more than can be sold for ready Money and short Credit; the Consequence is, a long Credit, with its consequential Multitude of Evils; that is Returns or Exports in full, are never, or not, till after a long Time, ship’d off.

Our Paper-Money being only passable amongst our selves, is the Reason, why, they who deal only in buying and selling a Share, get the most Money; all their Profits are upon our selves, and run no Risque of precarious Returns; while the generous Merchant looses upon his Exports to a foreign Market. This is a ruinous Case.

As Paper-Money grows scarce, Imports will be less, and be sold cheaper; no Country can want a true real Medium of Trade, while their Exports exceed their Imports: Let us then lessen our Imports by our Frugality, and add to our Exports by our Industry; and we shall have no occasion for this chimerical ill founded Medium, Paper Money.

V. The goodly Appearance, which Boston and the Country in general at present, make in fine Houses, Equipage, and Dress, is owing to Paper Money. All our Plantations from some Infatuation, are inclinable to run into Prodigality, Profuseness, and Show: these Paper Loans (from publick or private Schemes) upon long Periods, give the unthinking and unwary, Opportunities of involving themselves, by thus sinking what they have borrowed; by repeated Emissions, they have Opportunities of paying a former Debt, by running further in Debt, till at length they become Insolvents. People do not consider, that all Emissions upon Funds of Taxes or upon Loans, is running the Country more and more in Debt, and will in Course fall heavy upon every Individual. Never were greater Complaints of want of Money, while at the same Time, never more extravagance in Equipages and Dress. Boston, like a private Man of a small Fortune, does not become richer but poorer, by a rich goodly Appearance.

Edition: current; Page: [959]

What Part of these Emissions have we laid out in Improvements of Produce, or Manufacture? Not any. It is true, it gave some Men Opportunities of building Vessels and running into Trade; but their Education and Experience not laying that Way, and having no other Bottom of their own, they soon became broken Merchants.

Expending in fine Houses & Apparel what ought to have purchased Exports, is one of the Reasons, why Ballance of Trade is against us.

There is another Fund for all this finery, and of which we ought not to boast, but be ashamed. By the Means of a depreciating Currency the Merchant at Home, has been paid in less Value, than was contracted for; his Loss was our Gain. Several Factors from Time to Time, have by Artifice, & Assurance, procured large Commissions from Home, and with Effrontery and Insensibility of Discredit, have become Bankrupts: Thus the Produce of these Effects remained here, and makes good in some Sense, that Position of Dr. Mandevilles; Private Vices are publick Benefits.

VI. This Country formerly had but a small Trade, now our Trade being much enlarged, we require a large Medium. This like all the Arguments commonly used to pervert the People, is very unnatural: because the more a Country grows in good Trade, the more true Medium of Trade it acquires, and would have no Occasion, to have recourse to a fallacious Succedanium or Shift. Notwithstanding the vast Floods of Paper Money lately emitted, and our Trade also more general; we find that in former Times, the People were more willing and able to pay high Rates, than at present. The first Assembly upon the new Charter, did in June A. 1692, lay a Tax of 30,000 l. (equal to upwards of 120,000 l. present Currency) payable within the Year, viz. one half before 25th of December A. 1692, and the other half before 1st of May 1693; towards paying off Charges formerly incurred by the Canada Expedition and Charges of that Year. A. 1694 the Tax was 17,589 l. (equal to upwards of 70,000 l. present Currency) towards paying off the Government Charges of that and the preceeding Year. Whereas, we who reckon our selves so much increased in Trade at present A. 1739 refuse a small Rate of about only 50,000 l. towards paying Government Charges incurred A. 1728, A. 1733, and A. 1737.

VII. How can we pay our Taxes and Debts, if the Government do not make large Emissions of Paper Money? In all Countries excepting in Paper Money Colonies, the People support the Government: it is absurd to imagine that a Government finds Money for its People, it is the People who by their Trade Edition: current; Page: [960] and Industry, provide not only for their own Subsistence, but also for the Support of Government, and to find their own Tools or Medium of Trade. It is true, the Government, that is, the Stewards of the Publick, may by the Consent of their Principals, the collective Body of the People; raise Money upon the Credit of the Real and Personal Estates of the People: but this in Propriety of Speech, is not making (or acquiring) of Money as we term it, but the reverse: A Prodigal who involves his Estate to raise ready Money, is it not ridiculous to say he has made so much Money; whereas in effect he has spent so much Money by sinking some Part of his Estate. The unthinking Part of our People do not consider, that every Emission of Paper Credit called Money, is laying a heavy Tax upon us, which in Time will contribute to our Misery: and is really analogous to the Negroes in Guinea, who sell their Progeny into Slavery, for the sake of raising some ready Pence.

Our present Rates, are only a calling in Bills formerly Emitted, and therefore are supposed in being, and do not require a new Emission. This Cry is the same, as if a private Person borrows of another 100 l. payable after some Time, and in the mean while by profuseness and bad Oeconomy, becomes incapable of satisfying the Debt when the Term of Payment is come: but says to the Lender, you use me very ill, if you do not lend me 200 l. to enable me to pay the first 100 l. and for other Occasions: If the Lender proceeds thus to indulge the Borrower, this bad Husband must at length be reduced to a State of Bankrupcy: Province Bills are as much a Debt upon the collective Body of the People; as a private Man’s Bonds and Notes of Hand, are a Debt upon himself.

VIII. The Emission of 35,000 l. to 40,000 per Ann. for the ordinary Charges of Government, is a small insignificant addition to our Currency; publick Loans have been found inconvenient; let us then emit large Sums in Province Bills (the Charge of making Bills is a Trifle) towards publick Edifices, Fortifications, Guarda Costas, Bridges, Castles in the Air, or any Thing, tho’ of no Use or Consequence: they will draw out larger Sums, and considerably increase our Currency. They do not consider, that this contracting a large unnecessary Debt, to be redeemed after some Years, by heavy Rates and Taxes, will occasion a Clamour, perhaps a Mutiny, worse than the present groundless Complaints of Oppression. Such unnecessary Impositions are frequently Grounds of Complaint in the People against some Governours; but that the People should thus impose upon themselves, is one of the unnatural Effects of Paper Money.

Edition: current; Page: [961]

IX. Seeing, there is like to be no Stop to our Infatuation in receiving the depreciating Bills of Rhode-Island; why should they reap all the Profit in our Ruin: why should not some of our merciful Selves (as the Authors of the 500,000 l. Scheme call themselves) partake with them in the Plunder, by taking the Advantage of our present Indispositions & Weakness. Carry the Imposition further than that of Rhode-Island; even beyond what could have entred into the Heart of Man, at any other Time or Place, to conceive: I mean the emitting of 500,000 l. in Notes without Fund or Period; a Project, to outdo the Rhode-Islanders in Fraud, & to make these Bills more current, because worse than those of Rhode-Island: it is almost incredible to what a Pitch of Iniquity some People are arrived, even prophanely to lard their Proposals with Scripture Phrases, to impose upon the Vulgar waste Paper, instead of a valuable Medium.

The several Projections or Schemes which occur at present, towards rectifying our Currency, or at least to prevent its growing worse, are

I. Of a publick Nature.

1. Is palliative, to prevent its growing worse, by bringing it to a Standard. By Act of Assembly let the Governour and Council be impowred, with the Advice of Merchants, to settle once or twice a Year the Price of Exchange to London, or of Silver, in Province Bills; all Bonds, Notes, and Book Debts when paid, shall be received in Province Bills equal in Value to the Exchange or Price of Silver, as it was thus settled at the Time of contracting: For Instance, if contract for 500 l. New England Bills of Credit when Exchange is settled at 5 New England for 1 Sterling, and when the Contract is to be satisfied, Exchange is settled at 6 for 1; I must pay the true or Sterling Value, which is 600 l. New England Bills: this is strict Equity and natural Justice, it will effectually obviate the fraudulent Practices of those who are constantly clamouring for more Province Bills, and prevent the neighbouring Colonies from imposing their depreciating Bills upon us. Both Carolina’s have given us a successful Precedent.

2. As private Credit, being under Coercion, is better than publick Faith, which being above the Law, is lawless. Let the Legislature give a Sanction to some Society, of good substantial Men, who may be willing to emit Bills upon a good Silver Bottom, continually meliorating at a small Rate, v.g. 3 per Cent. per Ann. to prevent their being hoarded up; and receivable in Taxes and all publick Payments: Such Bills will soon bring a Discount upon all other Bills. We have at this Time (Christmas A. 1739.) a remarkable Instance of Edition: current; Page: [962] private Credit being good, and publick Faith of no Account: Merchants Notes (a private Emission some Years ago upon a Silver Bottom) are sold at 33 per Cent. Advance, their true Value above common Currency; at the same Time, our Province Bills of the new Tenor, which in good Faith are 25 per Cent. better than the other Currencies, pass promiscuously with the bad Currencies at Par.

3. Let Massachusetts-Bay Bills only, be receivable by the Treasurer of the Province, Counties, & Towns; all Bills of the old Tenor when brought into their Treasury, to issue out no more: that all publick Bills hereafter to be emitted, be of the Nature of our late Bills of a new Tenor, with this additional Clause, “And after the last of December A. ——— the Treasurer is hereby directed, without further Advice or Order, to pay to the Bearer ———Silver or ——— Gold upon Sight”: The Fund for bringing in this Silver and Gold from abroad, to be Impost upon Goods, Tonnage, and Light-House Money, payable in Silver or Gold only. At the several Emissions, let there be an equal Sum taxed on subsequent Years within the Period; and these Taxes at the same Time assessed on the several Towns, ordering the Province Treasurer at the stated Times to issue out his Warrants accordingly without further Order; to prevent breach of Faith in future Assemblies, refusing to assess the Taxes of the Year, which is the same as postponing. Thus all these Bills will have the Credit of a Silver Bottom, tho’ in their Nature they will be cancelled in Course by Taxes, before the Period of redeeming them by Silver arrive; that is, there will be none left to make a Demand upon the Treasury: the Silver lodged, will, after the Period, be ready for any Exigency of Government. In Fact, if breach of publick Faith do not intervene; the present Bills of the new Tenor will, by the end of December A. 1742, bring Silver to: 20 s. per Oz.—Let all new Emissions be in Bills of a second new Tenor, two for three of the first new Tenor, payable in Silver or Gold after the last of December A. ——— if not paid in by Taxes as above. Thus Silver will be brought to 13 s. 4 l. per Oz.—Finally, after some Years let all future Emissions be in Bills of a third new Tenor 1 for 2 of the second Tenor, payable in Silver or Gold after the last of December A. ——— with the forementioned Circumstances; Silver will then be 6 s. 8 d. per Oz. It is plain, that 100,000 l. of this last Money, will be a larger Medium of Trade, than 400,000 l. of the present Currency. This promises best, and would be a gradual, gentle, and easy Method of making our Currency as valuable as that of Virginia, which is the most valuable of all our Colony Currencies.

Edition: current; Page: [963]

4. The Parliament of Great Britain are at this Time, perhaps, taking some more summary Method of setling our Plantation Currencies towards redressing the injured Merchants at Home, and the fair Dealers in the Colonies; they made some Steps towards it last Sessions of Parliament. It is probable they may abridge the Plantations of this Privilege which they have assumed, of making their publick Bills of Credit, a Tender at any Rate they please to impose, which is equal to the King’s Prerogative in Coins. And to prevent private Societies, from bubbling the People; perhaps, they may extend, the Act of Anne, to the Plantations, viz. That to Partnership exceeding Six shall act as Bankers.

II. Private Schemes. It happens unluckily for our Paper Money Advocates, that, at this Time when the Parliament are about redressing these Grievances, they should madly advance many more Schemes (some fraudulent, some foolish, and some good, but impracticable) than ever before for multiplying of Paper Money; this makes good the old Saying, Quem Deus vult perdere, prius dementat.2

All Private Banks for large Sums upon Subscription, have the same bad Consequence which attends publick Loans, viz. a Snare to the People, by giving the unwary, and the Prodigal, Opportunities of borrowing, that is, of involving & ruining themselves. Our Legislature from Experience, are become sensible of this Error, and for many Years have issued no publick Loans.

1. Land Banks. The famous Mr. Law, noted for his Knowledge in the Chances of the Games called Hazard, and for these Fallacies called Sharping: in favour of a Land Bank, being preferable to Silver, says, That Land mortgaged serves for Money, and Culture, or Produce at the same Time; whereas Silver cannot serve for Money, and Plate at the same Time. As he did not understand Trade, he did not consider that Silver serves for Money and Merchandize at the same Time, and that Trade is more profitable than Agriculture. A Land Credit or Bank may do in a Country of no Trade: but it is ridiculous to imagine that it can serve as a Medium for foreign Commerce: it cannot be shipt off as Merchandize or Returns, as is the Case of Silver; it cannot be transferred by Bills of Exchange; for so many Ounces of Silver received in Boston, I can draw upon my Correspondent for so many Ounces of Silver payable in London, but for so many Acres of Land made over to Edition: current; Page: [964] me in New England, I cannot draw upon England for any Number of Acres, quantity and quality adjusted.

In a Country where the Denominations of their Currency depreciates, Land being fixed in itself, rises in Denomination Value, whilst what is owing upon the Land becomes so much less as the Denominations do depreciate: Hence it is, that a Land Bank is so much desired, by those who are in Debt by Mortgage, or who desire to run in Debt by Mortgaging their Lands.

2. A Credit or Bank of Produce, and Manufacture, will never answer in a Country where Idleness and Indolence prevails; a late large Bounty upon Hemp did not encourage the raising of any considerable Quantity thereof: it would prove a most perplexed labouring Affair, viz. inspecting the Quality, settling from Time to Time the Market Price, Deficiencies in Case of bad Crops, and other Misfortunes: Notes payable at these unweildy Stores, would be of the same Nature, and attended with the same Inconveniencies, as the so much deservedly exclaimed against Shop Notes. In the Infancy of Countries, particularly of this Province, some Part of the Taxes were paid in Produce, called Stock in the Treasury; but as our foreign Trade did grow, it was found most convenient to discontinue it.

I shall exemplify our present Projections of Banks upon Land, Produce, or Manufacture; by only one Instance. The Bubble of 450,000 l. upon Land and Produce, which fills by Subscriptions a great Pace; the Subscribers by their Articles, give their Twelve Directors a Negative in the whole Management; a Power never before heard of in any Society of Bankers or joint Stocks; it is true, they deserve it; because, by the Face of their Bills, the Directors or Signers promise to circulate the whole 450,000 l. upon sight. But is it possible, that any Man who gives himself the Trouble of thinking seriously, can imagine, that 12 Men of small Fortunes (who perhaps do not trade for 30,000 l. per Ann.) should in their Trade, immediately circulate 450,000 l.? Can it be supposed possible to negotiate Notes of so great a Sum, upon so small a Bottom? In short, this Scheme is so full of Inconsistencies, that it seems to exceed any of the Bubbles (which were upwards of 100 in Number) projected in London, in that Year of Bubbles A. 1720.

3. A Credit upon a Silver Fund well regulated as to Periods and Discounts, would answer, if there were no concomitant bad Currency: but as such a Currency already prevails, and will in all probability increase; by two Years Charges of this Government to be emitted at once; by a 100,000 l. Rhode-Island Emission, which they may throw in upon us at Pleasure; and by a new Edition: current; Page: [965] Emission of 100,000 l. from Connecticut, which they have been endeavouring from Time to Time, by trying to drop a majority of the present Assistants or Council; Silver will then rise in Price, and these Notes on a Silver Bottom becoming more valuable, will be hoarded up, lie dormant, and answer no Design of a Currency: It is true, they will secure to the Possessor, his Principal with a growing Interest; but as to Currency they are worse than common Bills, which being daily let upon Bond do circulate and promote Business, tho’ at the same Time the Owner or Creditor sinks part of his Principal, by its depreciating; and his Interest is ill paid from a general insensibility of Discredit. Such Bills will never obtain a Currency, until they force a Discount upon the bad Currency.

An Experiment of this Kind, has already been made by the Merchants Notes so called, without any good Effect: they never became a Currency; they prov’d a Snare to many of the Subscribers and Borrowers; Silver did rise in Price as much and perhaps more, than if they had never been emitted. Any Scheme of this Nature if upon a longer Period, will on that Account, be the more defective.

If the Scheme for emitting Company Notes or Bills, to be paid after 15 Years, with Silver at 20 s. per Oz. can be so contrived, as to bring a growing Discount upon the bad Currency; it will be of the greatest Service to this Province. It seems to bid fair for it (I am no Undertaker nor Promoter thereof, and therefore may be deemed impartial) the Undertakers are Men of known Probity, of the best Estates and of the largest Trade in this Place: by their Articles they oblige themselves under high pecuniary penalties, to circulate these Bills at a certain annually growing Value, until they arrive at 20 s. per Oz. and, in conformity to a late Law of this Province, to refuse all future Emissions of the neighbouring Governments, unless founded upon a Silver Bottom.

It may perhaps be advisable to suspend the Execution of any Paper Money Schemes, as the Affair of Colony Paper Credit, is this present Sessions, under the immediate Consideration of the Parliament of Great Britain, our supreme and absolute Lawgiver: lest the Subscribers (Undertakers) or Possessors of these Bills and Notes should suffer some considerable Damage, by their peremptory Suppression.

The Projectors of the many various private Banks for Currency, seem to presume too much upon the Indulgence or Connivance of our Legislature: Some audaciously question their Power to prevent the People from bubbling Edition: current; Page: [966] one another, (being as they call it) an Act of Liberty and Property to pass and receive Notes of Hand; others impudently impeach the Integrity of the Majority of the Legislature, as being in a private Capacity Promoters and Encouragers of these Bubbles. Doubtless our Legislature, as the natural Guardians of the People, will compassionately prevent their ruining of themselves; by proper Laws, such as those in Great Britain 6th Annae against Bankers, and sundry Acts against Bubbles; or to go no further for a Precedent, that of our neighbouring Colony Connecticut, A. 1733, against private Society or Bank Bills. There seems, at least for the present, an absolute Necessity to suppress those which will unavoidably have a riotous Consequence; I mean the passing upon the unwary, for a valuable Consideration, Bills without any true Fund or Bottom: Such Bills soon stop in Currency, and the poor innocent Possessors, the Tradesmen and Artificers, who for special Reasons (as they express it) are made their Dupes, will be provoked to use the Persons and Effects of the Projectors and Signers of those Bills in a riotous Manner. Our Assembly did formerly effectually suppress the pernicious Bubbles of private Lotteries. Our Law enacted in January, A. 1738, may be extended, so as to comprehend private Societies amongst our selves. This Act forbids passing or receiving Bills to be issued by the neighbouring Governments, unless redeemable by lawful Money, (Silver Proclamation Value) upon good Security, (to appear upon the Face of the Bill) within ten Years after their first Emission.

While this Affair of Colony Paper Money, is under Consideration of Parliament for Redress; it will appear as a daring Presumption, to proceed to large Emissions especially in those Colonies who have valuable Charters to lose. I mention this with a particular regard to Connecticut, who have hitherto behaved well; but at present their Eastern Borders being tainted by a bad (I had almost said abandoned) Neighbourhood, the Colony in general ought to be upon their Guard.

In redressing of this Error, in which many of our Plantations have obstinately persisted for many Years: it is to be hoped the Parliament of Great Britain, will not use any rigorous sudden Methods; but give us Time gently & gradually to extricate our Selves; That we may be allowed upon any sudden extraordinary publick Exigences to emit Government Notes to be a Tender only in publick Taxes, and to be called in as soon as may be by subsequent Taxes: that publick Bills may never be a Tender in Trade and Business. As to the calling in of publick Bills already extant; in those Governments where the Periods are short (in New-Hampshire, Massachusetts-Bay, Edition: current; Page: [967] and Connecticut, they do not extend beyond A. 1742) they may be allowed to run their Course: Where the Periods are long; if upon Taxes, as the Governments have the Privilege of Taxing at any Time, they may be required to assess the same at any Time sooner; if upon Loan the Borrowers may be obliged to pay in yearly for a few Years a certain Part of the Debt, but if they insist upon the original long Period, let the Governments give Premium’s upon all such Bills, as they are brought in; thus few or none of these Bills will be left with the Borrowers, and at the Expiration of the Periods of the Loans, they must pay in lawful Money Proclamation Value; which they will by all Means endeavour to avoid, by paying as is directed.

FINIS.

Postcript, to a Discourse concerning the Currencies of the British Plantations in America.

In the Discourse, I enumerated and endeavoured to answer in so plain, clear and easy a Manner, all the Arguments and Suggestions, then current amongst the Populace in Favour of Paper Money; that nothing but the raising a Mist of Obscurity, together with bold Assertions in Place of Argument, could affect it: accordingly there soon followed a Pamphlet called An Enquiry, &c in Favour of Paper Currencies, consisting of a new Kind or Set of Arguments in Abstracto (as the School’s Term is) without any Regard to Matter of Fact, but supported with Mobbish Hints, such as, “The Author of the Discourse shakes his Rod over us, by threatning us with Parliamentary Enquiries—His numerous and gross Reflections upon the civil Administration.—What he says is to distress the Province, &c.” This Piece is swelled to a considerable Bulk, by some idle Digressions; giving an imperfect Account of the Banks of Venice and Amsterdam, of Baron Gorts Munt tokyns in Sweden, of Mr. Law’s projected Land Bank, and his pernicious unsuccessful Paper Money Scheme in France; together with some Scraps from Mr. Lock and others concerning Money, Banks, and the like.

To write satisfactorily to competent Judges and to enlighten, but not to amuse the Vulgar with empty Words, is my present Design; lest his bare but bold Affirmations in Favour of Paper Money might have some Affluence in carrying on the Delusion in weak Minds: Weak Minds in all Ages after Edition: current; Page: [968] being well advis’d, do in Time come to the Truth and Right of Affairs: It is therefore the Duty of good Men, according to their Capacity candidly and with Fortitude, to inform those, who are not conversant in such Matters, but are blindly led away by evil Men; political Constitutions have at Times been subject to Maladies which require and do admit of a Cure.

Before I proceed, to prevent Misrepresentations and Prejudices, I must observe, that by the Vulgar and Populace, I always mean the unthinking Part of Mankind, who are not capable of consulting their own Interest; the Mobility who do not reason for themselves; but are tossed about with every Wind of designing ill Men. The Word Vulgar, is injuriously applied to the honest Tradesmen, Artificers, and common Labourers, who are the Support of the Common Wealth: Amongst them are found great Souls, who at Times, in several Countries have excelled as Prime Ministers and other Officers of State.

This Postcript, tho’ a short, just, and serious Abstract of his Book and Scheme, I am afraid will seem to any Person who has not perus’d his Book, to be a Piece of Banter or ludicrous Representation, because the Enquiry itself, appears to be not properly an accidental temporary Aberation of Mind, called a Delirium; but the Produce of a certain native Anomaly of Mind called by an English cant Expression Wrong-Head. The Enquiry being Anonimous, allows any Freedom consistent with Truth with us the Imputation of designed Reflections against the Author.

The Author must excuse me, if for the Sake of Propriety of Expression, I class his Positions or Arguments by the Name of Paradoxes. He may also allow me, with Regard to his perplexed, diffused, tedious, and testing Manner of expressing Things; to utter them most concisely and distinctly, but without deviating from his Sense.

I. The principal and fundamental Paradox. Bills without any other Fund or Period than common Consent, and no other Standard than a variable Market Price, are the only valuable Bills: all Bills promising Silver at a certain Price and Period, ought to be prohibited. Because (says he) as they promise nothing they cannot be negotiated by proper Premiums and Discounts; and do thus prevent usuricus Practices, Suits in Law, and other Inconveniencies—If they depreciate, they cannot properly be said to have suffered a Discount, because a Discount signifies something fixed from which the Discount is made. Having no other Fund but common Consent, if this is gradually and at length finally withdrawn (nothing is more precarious than the incertum Edition: current; Page: [969] Vulgur.3) the suffering Possessors can lay the Blame no where but upon their own Folly, in giving Consent: They are remediless in Law, and according to the Nature of the Scheme are fairly dealt with and ought to take Care not to deal in such perishable Commodities in Time to come.

How is it possible to imagine that this perishable Consent, should be better than Silver, an adaquate Depositum4 which abides for ever? Is it not plain that such Bills promising nothing but Waste Paper, if left free to their Course in the Market, their Market Price would be accordingly?

By common Consent, he means the Vox Populi5 because, he frequently mentions Government and common Consent, as distinct Thing. If common Consent were to take Place all the Effects in the Province would be equally divided amongst the People, because we are all born equal: After some Time the Idle and Extravagant becoming empty handed, while the Frugal and Industrious become rich, common Consent would divide again. Our depreciating Paper Currency by taking from Time to Time, Part of the Estates of the Creditors in Favour of the Debtor be the same Treachery: Is this to encourage Industry? Who would labour in Produce and Manufacture to be thus stript of his Earnings? Suppose a Company of Men who have little or nothing to loose, valuing themselves upon their Numbers (which is our Author’s common Consent) should proceed in a Scheme of Bills without any other good Foundation; at first they pass them amongst themselves and Friends, and in Course will be made a tender to others under Penalty of the Forfeiture of Goods and Merchandize for which they are offer’d, the suprema Lex6 of the Mob being Rapine: That is, the inevitable Consequence will be Riots and Mutiny, without any Regard to the general Rules of Commerce or particular Acts of Government.

II. All Standards of Currencies are pernicious; Currencies like Commodities ought to have their free Course in the Market, not to be limited by Funds or Periods which are Imperfections. He excludes our Bills of the New Tenor from his Currencies because they promise something viz. Silver at a definite Period. He instances, 1st Barbadas Bills of A. 1702 which because redeemable at a certain Time, suffered a proper Discount, whereas if there had been no Edition: current; Page: [970] Period there could have been no Discount, or rather, he should have said, no Acceptance or Currency at any Rate. 2d. Maryland Bills, immediately upon their Emission suffered a large Discount, because they promised Sterling Value after a long Period: If they had promised nothing, or if any Thing, never to be paid; a Discount would not have been fixed, and they would have proved a good Currency, which they are not, tho’ a Tender in Law.

III. Silver is not the best Measure, nor the best Instrument in Commerce. All the Trading World at present, and Time out of Mind, have used a Silver Medium. The Patriarch Abraham purchased a Field with Silver, which he calls the Merchant’s Currency. 2. Silver in a Course of Years changes its Value more than most Commodities. In England since K Edward the sixth Time a Silver Shilling hath lost but two Cr of its Value. Since we begun to manufacture Bills, which have undergone vast Alterations, Silver Currency in the trading World has suffered no Alteration. 3. The Imperfection of Silver is the true Cause of the Introduction of Banks. He should have added and for the same Reason, of Merchants keeping Oath Books; whereas the universal fixed and durable Value of Silver is the Foundation of all Banks. 4. An Impression upon Paper is better than an Impression upon Silver. Whereas the first is a most tender Matter and of no intrinsick Value: the other is a durable intrinsically adequately valuable Metal. 5. The Fluctuation of Silver as a Commodity, as in London from 50 & 3 d to 51 & 6 d per Oz. is the same as our Bills depreciating many Hundreds per Cent. 6. Whether we had made Paper Money or not, all Contract, and Debts would have depreciated after the same Rate, That is, 3 Oz. of Silver contracted would have at present weighed only 1 Oz. Such Paradoxes do admit of no Commerce. 7. One Years small Payment of Impost in Silver did rise Silver from 27 to 31 s. per Oz. Why did not the preceeding and subsequent Years of Silver Impost Money, raise Silver after the same Rate? Why did Silver rather fall than rise in Price from A. 1734 to 1738. notwithstanding the large Silver Payments upon Account of calling in the Merchants Notes? 8. Bills promising Silver at a certain Value & Period; their present Value is much less than the Value of our Province Bills. He seems as much prejudiced against Matters of Fact as against a Silver Currency. We all know that last Christmas, Merchant’s Notes payable after 4 Years in Silver, were negociated at 25 per Cent. better than Province Bills.

IV. Every Country’s, every Man’s natural Pound is according to his Circumstances. That is, if I borrow of a Man ten Times richer than my self a certain Sum of Money, and at the Period of Payment, let him have my natural Edition: current; Page: [971] Pound being only one Tenth of the real original Value which I borrowed, I have in Equity satisfied the Debt. As People’s Circumstances differ as much as their Faces, What Confusion would this occasion in Dealings! Do not the Courts of Judicature in all Nations make up Judgments against Debtors indifferently without Distinction of Circumstances. A Bankrupt, (he says) by Imprudence, Misfortunes or Villany without Distinction, who pays only 5 or 10 s in the Pound, pays his Pound and satisfies his Debt as honestly and laudably as he who pays 20 s in the Pound: A nominal Pound is as good as a real Pound: no Standard of Justice: Or as he elsewhere (deviating from himself) well observes, we deal as if we had no Yard nor Bushel; This is pleading the Cause of Bankruptcy, and exposes this Country much, by comparing our depreciating Paper Money, to a Bankrupt’s Pound: What we do not return, he says, is so much forgiven us by the Merchants at home. But to carry on the Comparison; If a Bankrupt pays his Creditors only one Shilling for a Crown, ought this Bankrupt’s one Shilling be made a Tender for a Crown in all Dealings?

V. Bills are a Commodity, and therefore do naturally rise and fall in the Market. If so, ours are a very bad Commodity, because always a falling in the Market Price. A Commodity in the general Acceptation and Letter of the Word, signifies what is materially useful, as a necessary or Conveniency of Life; take from Bills the Notion of Currency, they are only Waste Paper, as to their Matter; whereas Silver is equally valuable as a Commodity, or as a Currency. 2. Silver being a universally staple Commodity, and Bills only a local Commodity, makes no Difference. 3. Our (fluctuating or rather continually depreciating) Paper Bills are a Standard for Silver. That is, a Ship upon the Coast progressively under Sail, stands still, while the Fields and Trees fluctuate.

VI. Our Bills are emitted upon the best Plan the World ever did see; all the essential Parts of the Banks of Venice and Amsterdam, are to be found in our Province Bills of the Old Tenor. This Hint seems borrowed from a facetious Writer, who finds all the Beauties of the best Greek and Latin Authors, in the History of Tom Thumb. The Credit of those Banks, is the universal Consent or Acceptance of the whole trading World, an adequate Depositum in Silver, and Agio7 above the current Price of Silver: Our Bills have Edition: current; Page: [972] only a small local Provincial Consent, no Depositum many per. Cts. worse than Silver, and continually depreciating or growing worse than themselves from Time to Time. Forgetting himself, in another Place, he says, our bad Circumstances are the Reason, why our Bills are not upon the same good Establishment as the Transfers of the Banks of Venice and Amsterdam; How then can they be essentially as good? He should have plainly expressed it thus; at present our Circumstances render us incapable of having a solid Bank of Credit.

For the great Benefits accruing to a Country from Paper Money, he unluckily instances South Carolina where its bad Effects have been the most notorious, by occasioning the greatest Confusions, even Mutiny itself. The flourishing State of that Province, proceeds from its Soil and Climate, producing a good Staple, the best of Rice; and from a neighbouring vast Indian Country, affording large Quantities of Deer Skins: Their large Dealings are not transacted in Paper Money; but in Rice, and Bills of Exchange.

VII. The cancelling of publick Bills, according to publick Faith, is a publick Fraud or iniquitous Administration; it is establishing of Iniquity by a Law, because as they promise no effective Payments, the Postponing of them is Justice and Righteousness. He hints at what he imagines a sort of Magna Charta, granted A. 1712 by our Assembly to the People, whereby they virtually took upon themselves to supply the Province with Bills to serve as Money, therefore if we do not postpone these Bills, the Legislature are guilty of a Breach of Magna Charta. Was there ever a Heresy from any Scriptural System, so enthusiastically imagined, and so ill founded.

VIII. Paper Money borrowed is not running in Debt, Province Bills are only a Debt amongst our selves, and therefore improperly to be called a Debt. The publick Debts in England to the several Companies or Stocks there, are upon all Occasions called heavy Debts, and the Poor the Consumers are very sensible of the Load of the Funds, the grievous Taxes upon Coals, Candles, Soap, Leather, and some other Necessaries of Life: We murmur yearly because of our great Taxes or Rates, occasioned by this Paper Money Debt; every Emission of our Paper Money, is sensibly found to be contracting of Debt, when the Taxes or Mortgages on which they are founded come to be paid. 2. We grow daily richer by means of this Paper Money, we are three Times richer than we were at the introducing of these Bills. If this could be supposed true, while we daily pay less and less in the Pound, how should we avoid the Imputation of a fraudulent Bankruptcy; a Country or Town may look Edition: current; Page: [973] well to outward Appearance, and yet be in a Galloping Consumption, as the vulgar Phrase is. In London a Merchant or Tradesman making a more than usually splendid Appearance, is frequently a Fore-runner of Bankruptcy.

The Paper Money Advocates represent our 630,000 l. present Paper Currency, as a clear Medium of Trade, and say that it is not too much for New England, and is but a Trifle when reduced to a Sterling Value: whereas it is really an Incumbrance or Debt to be paid, and is already without Additions, too heavy upon the good People of this Province, and will oblige them to sink Part of their trading Stock (instead of inlarging their Trade) to pay their large Taxes.

By Experience we find, that our Credit does not allow of so large a Debt, without depreciating; therefore all new Emissions being additional Debts, do sink the Credit of our Bills more and more. Our inordinate Desire of more, may be compared to Thirst in a Dropsy, which by endeavouring to satisfy with Drink, increases the Distemper. Cressit indulgens sibi dirus Hydrops.8

IX. The Mother Country, Widows, and Orphans, have suffered for want of a sufficiency of Bills. That the Merchants of Great Britain have been the greatest Loosers by Discounts in their Returns of some Hundreds per Cent. is acknowledged by all Parties. Widows, Orphans, Societies incorporated or voluntary, who have a considerable Part of their Stock at Interest, have suffered very much. The College of Cambridge in New England, have sunk above 10,000 l. A charitable Scot’s Society in Boston, (formed in Imitation of the Scot’s charitable Corporation in London) have suffered very much; some of their Bonds are lately paid in, at the Rate of 29 s. per Oz. Silver, which were contracted when Silver was at 7 s. per Oz; this is 300 per Cent. loss of Principal: Ministers of religious Congregations, are not paid the real and true Value of their Stipends contracted for: In short, all Creditors who have dealt in Honesty and Simplicity of Heart, have been thus sharped upon. Our Author with an open Countenance, says, That the Rhode-Islanders outwitting of us, by their repeated large Emissions; is doing for their own interest, what all wise People ought to do—The Paper Money Sollicitors in Answer, say, That the reducing of Contracts to Specialties i.e. to Silver by Weight, is not forbid; therefore private Men must blame themselves, Orphans must blame their Guardians, and Widows their Advisers, for not making their Edition: current; Page: [974] Contracts in Silver Value, and not in those Bills: This is giving up the Cause of a good Currency, and allowing that every prudent Man should have refused the Currency of those fallacious Bills; or that our Legislature, the common Guardian of us all, to prevent our being cheated by others, and our cheating of ourselves, ought to have established a Specialty, as has lately been done in the Carolinas with good Effect.

Sufficiencies of Bills, properly speaking, are the Sums which the trading Credit of a Paper Money Country can bear; the more that these Sums are exceeded, the more they become a negative Sufficiency (as Mathematicians say of positive Quantities in a continued Progression to certain Limits, after which they become more and more negative) and their Credit depreciates, and the Creditors or Acceptors of such Bills suffer more and more. This negative Sufficiency multiplied, is what our Author proposes for our Relief, and for the introducing of Silver again; but as Bills by their increasing Quantity superseded and drove away Silver, Silver can never be again thus introduced, unless at length, Bills by their Quantity and bad Bottom, become as Wast-Paper; then Silver must take Place.

X. The Legislature to make Laws to bring the Balance of Trade in our Favour. This is as unnatural and impracticable as the Legislature making a Medium of Trade; both which can only be effected by Trade itself. Ballance of Trade when against a Country, is answer’d by exporting the current Cash, equal to what the Exports in Merchandize sell short of the Imports: our Paper Currency is not exportable to pay a foreign Debt, and therefore will answer no Ballance of Trade 2 Our Bills have depreciated, in Proportion to the Ballance of Trade increasing against us. In S Carolina, where the Ballance of Trade is much in their Favour, many of the Inhabitants having large Sums of Money lodged in England; their Paper Money notwithstanding is much more depreciated than ours, because of their greater Paper Money Emissions and Breach of publick Faith.

XI. Contracts reduced to Writing but not the Silver contracted for, is the Money or Medium. He might perhaps have the Hint of this, from the Analogy of many Spendthrifts amongst us, who after being long dunn’d for a Book Debt; if the Creditor accepts of their Notes or Bonds, they became as easy as if they had paid the Money. Medium of Trade in its proper Sense, signifies some intermediate adequately valuable Commodity, such as is Silver. Some Colonies of peculiar Produce, allow of a local (therefore imperfect) Medium; as Sugar, Tobacco, Rice, in some of our Colonies are Tenders.

Edition: current; Page: [975]

XII. Every landed Man, even to the mortgaging of his last Acre, has a Right to make Money. He should have added, and finally has a Right to the Alms-House. Thus these projected Banks give the Idle and Extravagant Opportunities of borrowing or involving of themselves, that is these Banks tend to the Ruin of the Province; we allow that in Prudence a landed Man may sell off some Part, the better to improve the Remainder.

XIII. The projected Bank or Scheme, commonly called J—— C—— and others, is built upon the best and only good Foundation we have: the Subscribers are Men of Judgment, Integrity, and Estates. Notes of a dubious, some say desperate Credit, not receivable in Taxes, (no legal Tender, bearing no Interest to the Possessor, obligatory only for Goods at a precarious Price, and not actionable till after 10 Years. Shop Notes which our Author (happening accidentally to be in the right) deservedly tho’ inconsistently with himself, so much exclaims against, are much preferable to such Bills, because payable upon Sight, and in Case the Shopkeeper uses the Bearer very ill, are immediately returnable to the Merchant. Such Bills being ill founded will soon stop in Circulation, the Possessor in Time must have a Law Suit with the Signers, who perhaps prove insolvent: But if they may be supposed solvent, the Signers for their own Redress, must sue a numerous Tribe of perhaps generally insolvent Subscribers, and occasion a Convulsion in the Government. To give a Hint, of such Notes satisfying of Contracts payable in Province Bills, is the Height of ———

A Depositum of Silver, Land Security, Government Security, are proper collateral or additional Securities; but we know of no Bank without an adequate Depositum of Silver, if they negociate on Transfers; or Silver sufficient to answer all their Cash Notes upon Demand, if they deal in Cash Notes: It is impracticable to circulate Product and Manufacture, being perishable unweildy, uncertain, fallacious Matters. The Land Bank projected in England in K. Williams Reign, tho’ established by an Act of Parliament, like a Mushroom, soon came to nothing. The only proper Land Banks, are but Count-Registers, where Lands are regularly transferred daily.

I shall dismiss this Paper Money Agent, by observing, that his Memory sometimes gives him the slip, and inconfidently with himself he deviates into Truth. I shall mention a few Instances. Contracts ought to be paid in Silver, at the current Market Price as when made, but not as it now is, if depreciated—All other Commodities keep Pace with Silver, is it not the most natural Medium?—When People were obliged to receive light Pieces of Eight in Edition: current; Page: [976] Currency, they advanced upon their Goods in their Contracts accordingly: This equally holds good with Respect to a depreciating Currency (our Bills) of any Kind Pag. 57 Upon a large Emission of Bills, Silver and other Returns must remarkably rise. P 17. By emitting and calling in of Bills their Value may be fixed or diminished: This is our grand Argument against large and frequent Emissions, viz. the depreciating of our Currency.—Thus unwarily he gives a full Answer to his own Book.—Further I must observe that in Recommendation of his Land Banks, he says, The Mother Country will sooner make Abatements in our Pay than take Lands.

I shall conclude with a Recapitulation of some general Remarks, concerning our Paper Money.

1. If Bills provincial or national, would answer all the Intentions of Money, no Country in the most chargable unsuccessful Wars, or in the greatest Bankruptcy as to Trade, would be distressed for want of Money. If Bills upon Land Security could answer the Invention of Money; the Emperor would not have given him that late inglorious Peace with the Turks for want of Money to support his Forces. The Spaniards might make themselves easy, tho’ their Flota’s, Galients, Flotillas, Assogues, and Register Ships proceed to port. A Manufacture from Copper Plates, Paper and Ink (a late Invention of the British Colonies in America) is a more compendious and infinitely less chargeable Market of Currency and Medium of Trade. A Sort of Philosophers Stone (a Term used by the Alchemists) or Art by which no Country (a Country always supposes Land) can be without a sufficient Quantity of Money: The Spanish Mines in America, an industrious Trade, are becoming mere Chimeras and Deceptions; If Land should be exhausted, there remains still a better Fund, viz. common Consent, without any other Bottom.

2. The Party for multiplying a depreciating Paper Currency are 1 The Idle and Extravagant who want to borrow Money at any bad Lay, tho’ finally to their own Ruin; 2 The fraudulent Debtors, that they may pay their Creditors in less Value than contracted for, and notwithstanding retain their Credit without being reckon’d Bankrupts; a mortgaged Estate can be redeem’d by a smaller dismembring, a Shopkeeper pays his Merchant at a great Discount. 3. Some Men of Substance and industrious, but of a natural improbity and Depravity of Mind who by Experience have found, that the greater Confusion such Emissions occasion in Business, the greater Latitude is given for cheating: For Instance, in a depreciating Paper Money Country, the only Method (much practised by the Advocates for Paper Money) of growing Edition: current; Page: [977] rich, is by a Series of the greatest Acts of Injustice, viz. to owe to others more than is due to themselves, to procure long Credit, when due, to postpone Payments and bear dunning, and finally to let the Law which in this Province is tedious and not chargeable, take Place. 4. The weak and ignorant (here I include a large Number of good honest Men but misled) who imagine, or are taught, that the Legislature, can give every individual Person of the Government, what Money they may desire, without any other Bottom, but an Act of Assembly; and that the with holding of it, is Step Father or Step-Mothers usage.

3. The Party against a depreciating Paper Money currency, are 1. The Industrious and Frugal, our considerable foreign Traders and rich Men; who because of their great Substance deposited in the Country, are obliged to have the Interest of the Country most at Heart: Thus in Great Britain (to compare great Things with small) the Peers by Reason of their great Estates in the Kingdom, are deem’d the natural and standing Council of the King and Country. The Industrious and Frugal have Reason to withstand the raising of Money upon Taxes by a Paper Credit, because by the other Party, who are the most numerous, they are loaded with almost the whole Burthen of the Assistments; the Assessors ought to consider, that the easing of the Extravagant in their Taxes; is so much Encouragement allow’d them to carry on their Extravagancies; in other Countries Extravagancies and the Extravagant are much taxed. 2. The honest Creditors, who are for fixing, the Value of their Contracts and Debts by a Standard: This is called by the Paper Money Party, endeavouring after unlawful Gain. 3. The fair Dealer, who desires neither to bubble nor be bubbled. 4. The considerate thinking Man, who from Experience finds, that all Emissions, are contracting of Debts.

4. All Mankind exclaim against clipping of Coin, because it is a Fraud to tender Denomination of a lessned Value: making of a depreciating Paper Money Currency a Tender in Law, has the same effect. It is allowed by every Body, that the most glorious Action of K William’s Reign, was the calling in of the clip’d Money, and ascertaining the Value of it by a mill’d Recoinage: The Progress our late Assemblies are making towards sinking of our precarious Bills of the Old Tenor, and reforming them into new Tenor Bills of a fixed Value, will have the same good Effect. A depreciating Paper Money, has a vastly worse Effect than clipping of Silver Coin, which never reached further than a Fraud of 25 or 30 per Cent, but the other has reached in New England to 450 per Cent, in S. Carolina to 700 per Cent, in N. Carolina to Edition: current; Page: [978] 900 per Cent. As the effectual Cure of the clipt Coin in most Nations of Europe, was reducing it to mill’d Money, or to Weight as in Barbados: So our Provincial Bills may be brought to a Sterling Price by fixing Exchange from Time to Time, as in the Carolina’s.

5. The Paper Money Men (some anomolous excepted) generally allow, that Silver is a better Medium than Paper; but as it is impossible (so they express it) for Silver ever to be made current with us, they are for continuing and increasing the Paper Money Currency. Let us not despair, it is not impossible to give Silver again it’s Currency; let us tread our Foot Steps back, and we shall naturally return to where we came from: That is, as the increasing Quantity of Paper Money drove away Silver, a gradual lessening of the same, will make Room for this better Currency: 1. As Bills grow scarce, the Merchants will be obliged to convert some Part of that Commodity Silver into Cash, as in other trading Countries, no Man can trade to Advantage without Cash. 2. The Scarcity of our Province Bills will effectually bring a Discount upon the Bills of the neighbouring Colonies, because Praemiums will be given in other Bills, for Bills of our own Province to pay Taxes; and no more Bills being emited from time to time than sufficient for the present Charge of Government, our Bills may be brought to Proclamation or Sterling Value. 3. Bills growing scarce, our extravagant Way of Living, that is, our Imposts will lessen for some Time: we find at present the Homespun is more in Wear by the Country People, and Spinning is more practised, than at any Time, since the Beginning of this Century. If this scarcity of Currency oblige us to go further into Shop Notes for small Dealings, and into Barter for larger Transactions, it will be only for a Season (in Sweden from Baron Gortz’s Munt tokyas, they went into Barter, and from thence back again unto their intrinsically good Currency) until the Inconveniencies thereof become still more sensible, and then the very good Husbands will retain Silver for Cash, whereby they can deal to better Advantage, and seek out for other Returns, to supply its Place as a Commodity. Bills are in their own Nature, only proper to be returned by Taxes into the Treasury, from which they issued; and perhaps in small Quantities may pass as Inland Notes, but are not fit for a Medium of foreign Trade.

Edition: current; Page: [979]

35: Thomas Baxter, A Letter from a Gentleman at Barbados to His Friend (London, 1740)

This selection tells an interesting tale about a confrontation between a new governor and a powerful provincial leader. The setting was Barbados and the central characters in the story were Governor Robert Byng, appointed in 1739, and Henry Peers, who had been a member of the Barbados Assembly since 1706 and a long-term speaker of that body. The author was Thomas Baxter, a confidant of the new governor who would himself serve in the Barbados Assembly in the early 1740s. The form was a letter, written to Jonathan Blenman, formerly the attorney general of Barbados, who was then in London at the Inns of Court. By the time Baxter wrote the letter in late December 1740, both of the protagonists were dead, and he wrote to counter charges then circulating in London that Byng had engaged in “great Oppression and Tyranny” during his short administration.

In his “Vindication” of Governor Byng, Baxter attributed the political altercations during Byng’s administration to Peers’s disappointment at being frustrated in his ambitions to become governor himself and to Byng’s insistence on maintaining his independence from Peers by resisting Peers’s efforts to encourage him to follow the example of several of his predecessors and resign “his Authority to Mr. P[eers]” and content “himself with the Name of his Office.” While Lord Howe, the previous governor, had worn “the Demagogue’s Leading-Strings till they galled him,” Baxter reported, Byng “disdain’d even to put them on,” thereby earning Peers’s Edition: current; Page: [980] inveterate hostility. Peers’s “undue Influence” in the Assembly enabled him to cut the governor’s salary, to interfere with his efforts to put the island in a better state of defense, and, when Byng dismissed Peers from his militia office, to persuade the Assembly to adopt, without a single “dissenting Voice,” the “severest Address . . . that was ever presented to a British Governor,” so that Peers’s adherents could send it along with a “Bundle of Libels” to London in a blatant attempt to force metropolitan authorities to recall him. Although Peers’s death in early September 1740 and Byng’s death in early October put a stop to this campaign, Baxter, who professed himself to have “no Partiality for Men in Power” nor “any Tenderness for Governors,” praised Byng as “a Man fit to govern, and therefore would not be govern’d,” emphasized Byng’s remarkable moderation in the face of such unmerited opposition, and declared that Byng, so far from being guilty of one “Act of Mal-Administration,” had taken “more Pains to do good than I ever thought of experiencing in a West-India Governor.”

This pamphlet, to which Blenman contributed a preface, is remarkable for laying out the process by which settler leaders often co-opted royal officials and for its explication of the process by which political leaders won support and provoked popular opposition to enemies by circulating information at “Cock-fights and Funerals, Parties of Diversion and of Business.” (J.P.G.)

Edition: current; Page: [981]

a

LETTER

from a

GENTLEMAN

at Barbados

TO HIS FRIEND

now in London,

Concerning the

Administration of the late

Governor B——g.

LONDON:

Printed for J. Roberts in Warwick-Lane, and sold at all the Pamphlet-Shops

in London and Westminster, 1740.

[Price One Shilling.]

Edition: current; Page: [982]

Preface.

The following Letter was sent me, with full Liberty to dispose of it as I should think fit; and finding the same calculated for general Use, and indeed design’d for the Press in Barbados, I apprehended it would be altogether improper, if not unjust, to conceal it here; especially after an Address, taken notice of therein, had been dispersed throughout the Kingdom in our Weekly News-Papers. Natural Justice dictates, that each Party should be heard before either is condemned; which will hold as well on Appeals to the Publick, as with regard to Matters depending in established Courts of Judicature; and this is an Account perhaps which may be as fairly adjusted, now both are in their Graves, as before. I soon resolv’d therefore, to put the Performance into such Hands, as would not fail to send it abroad exactly as it came to mine; and it was judg’d most eligible to do so, without the Privity of the late Governor’s Friends, because it manifestly relates to Transactions beyond their Inspection, and the World might, besides by such a Conduct, be sure of the genuine Sentiments of a very discerning Person on the spot.

But with this Publication of my Friend’s Epistle, I must be allowed to declare, that as, I could not possibly have any share in the Disputes which are the Subject of it, so neither am I any way interested in them. For tho’ I was necessarily engag’d in all the political Contests of that Island, for more than twenty Years precedent to these (which it were rather to be wished had been buried with the Ashes of the two Principals) I had yet the Satisfaction to leave it a few Months before Mr. B——g’s Arrival, possess’d of the entire good Will of the Inhabitants, then in perfect Harmony amongst themselves. How far I might be instrumental to so desirable an Union, I cannot say; but am certain my constant Endeavours for that purpose were not wanting, since I ever had, as I shall always retain, a sincere Affection both for the People and the Place, where it has already been my Lot to spend the better part of Life; and having therefore no great Ambition at these Years, I shall not much grudge quietly to end it in the same Climate.

The Name subscribed to what is now offered the Publick, will undoubtedly be sufficient to procure the Attention which That deserves. But I can do no less, on this Occasion, than acknowledge, that a long Intimacy with the Author has give me the strongest Proofs of Veracity and Candour; as his Station, during my Absence, must of course have afforded him the best Opportunities of knowing the Facts he relates. However, to these I shall add no Remarks of mine, on one Side Edition: current; Page: [983] or the other, but frankly leave every Reader to form his own impartial Judgment upon the whole.

J. B.
Thomas Baxter
Baxter, Thomas
December 27th, 1740
Barbados
Jonathan Blenman
Blenman, Jonathan

To Jonathan Blenman, Esq; In London.

SIR,

In the last Letter I had the Honour to receive from you, there is something like a Complaint of my not being particular enough in the Account I formerly gave you of Mr. B——g’s Reception, and the Disputes that have happen’d in his Administration. You are pleased to think my Experience in this Island enables me to form a tolerable Judgment of Persons and Things; and my present Station will not suffer me to be a Stranger to its publick Affairs. The Truth is, while that Gentleman was alive, I knew his Actions would speak for him daily, and justify him much better than any thing I could write. Besides, I really did not like the Subject. The Contest between the Governor and Mr. P——s was inglorious on the part of the former; because, tho’ he was sure of Victory in the End, yet he despair’d of reaping Honour from it.

But after all, if one had ventur’d to trouble you with a tedious Story of the old Follies of Barbados acted over again (where you have seen an Assembly supporting one Governor in all things unlawful, and opposing another in all things lawful) yet he could never have thought of removing that Load of Calumny that has lately been thrown upon Mr B——: He might as well have anticipated a Charge of Robbery or Coining, as those Forgeries that have been so industriously transmitted home, and are now echo’d back, both in private Letters and publick Prints. As things stand at present, our late Governor can’t answer for himself; and yet his Memory, his Family, and his Friends, call aloud to have the Account between him and his Enemies adjusted; and as nothing can be sufficient for this Purpose, but Facts that are either notorious, or well attested, so I shall be obliged to enter into Detail, exceeding the ordinary Bounds of a Letter; not doubting your usual Indulgence to an old Friend, who is neither fond of, nor us’d to this Way of Writing, which necessarily touches upon personal Character.

Edition: current; Page: [984]

On the 15th of December 1739, his late Excellency arriv’d at Pilgrim-House, which he found in such Order as was far from denoting a hearty Welcome to his Government. He must have walk’d up to the Door through Grass and Weeds, if the Diligence of the Treasurer had not apply’d a hasty Remedy to this as well as some other Indecencies. The Garden was a mere Waste, and he never was allow’d a Gardener to put it in Order; a Trifle that has hardly been denied to former Governors. The taking of his Baggage by the Spaniards, had left him destitute of almost every thing but his Plate and his Cloaths; no small Disadvantage, besides the Loss, in a Place where he could not be supply’d for Money, and where Parade and Shew are esteem’d vital Parts of Government. The Inhabitants, thro’ Fear, Dependence, Necessity or Example, were devoted blindly to the Will of one Man, whose imaginary Interest and real Intention it was, to distress a new Governor. This was so generally the Case, that it will hardly admit of any Exception, unless that of the Counsellors, Lawyers, some of the Publick Officers, and a few Planters, who were Men of Sense and clear Estates. Even the Secretary, who was at the same time* Clerk of the Council and of the Assembly, was the Bosom-friend of the Governor’s determin’d Enemy, and enjoy’d those two incompatible Posts, for Reasons well known to his Patron. In private Conferences, as well as the Assembly’s Address, the Governor was entertain’d with long Declamations upon the Poverty of the Country, the stedfast Resolutions of its Representatives concerning his Appointment; and was often told of the seasonable Notice that had been given him in England, to confine his Expectations within narrow Limits. Not a Word all this while of his Excellency’s consummate Wisdom and Justice, with all those shining Qualities that adorn Government and make it useful. No more than a dry, forc’d Compliment or two, importing that he was early acquainted with Business; and that they expected some Good, because they never had heard any Ill of him. The Governor remonstrated, that the Country was now in a much more flourishing Condition than my Lord H—— found it in; he was conscious of having brought with him as good Intentions as the best of his Predecessors; he was not sensible that his Character was blemish’d; his Design was to spend every Shilling he should receive from the Country (of which he Edition: current; Page: [985] gave solemn Assurances) and he hop’d to approve himself not unworthy of any Favour that might be shewn him. But if he were less consider’d than his immediate Predecessor, he could not avoid thinking it was setting a Mark upon him; an Indignity offer’d him, under which he could not sit easy. As his utmost Demand was a Settlement equal to L——d H——’s, so he should never desire or accept of more in any Shape whatsoever.

While the Event of this Negociation was doubtful, the Governor’s Affability, open Behaviour, and Hospitality, gain’d upon the Minds of all that came near him; and they did not fail to utter their Sentiments and hearty Wishes that he might be gratify’d; judging this the only Measure that could procure Peace and Happiness to the People. The whole Council, and most of the Assembly were of this Temper; and I can assure you faithfully, I did not meet with one thinking Man among Mr. P——’s best Friends who thought differently. But all these thought for the Publick, Mr. P—— for himself. To explain which, it will be proper to review some former Transactions, which you will easily recollect.

You may remember, Sir, that this Gentleman’s first Notion of obtaining the Government of this Island was conceiv’d immediately upon the Death of L——d H——w. The Project, I am told, was form’d between him and my Lord’s Chaplain, who found Means of persuading him, that if he made a Friend of Lady H—— she would be able to procure the Post for him, and the English Salary for herself. To work he fell immediately, and got a Present of 2500 l. voted to the Lady; which Sum was paid as the Price of his future Government. For you are sensible, he was liberal, without Measure, of the publick Money, when he could find his Account in wasting it; witness the two memorable Country-Orders for 810 l. A detestable Fraud! which exercis’d all your Vigilance and Sagacity in detecting and disappointing it. But this Chimera soon vanished, and made Way for something a little more substantial, tho’ not more successful; upon which however he built such sanguine Expectations, that he could not refrain from expressing his Joy to you, who, he well knew, could share no Part of it. All his well-wrought Schemes being at length disconcerted, he resolv’d on playing an After-game. Accordingly he draws the then Assembly into such Resolutions as he thought proper, transmits the same to their Agent at London, and thereby beats down the Value of the Government so low, that he hoped no Person of Condition would accept of it; and the Ministry would be reduced to throw it away upon him, who was, of all Men living, the most unfit for it. But this Masterpiece of Edition: current; Page: [986] Policy fail’d like the rest; for a new Governor was appointed at home, and shortly expected here.

What then must a forlorn, disappointed Gentleman do? Ambition was no more.—There was some Comfort still left. A Sacrifice was due to Rage and Envy; the Post was to be made bitter to the Man who had been hardy enough to supplant him; and what is more, there was a Way open for exercising the Powers of the Government, without having the Commission. Just in this Situation did Mr. B——g find our Demagogue, who was at the same time Speaker of the Assembly, Master of the Ordnance, and Colonel of that Regiment which is nick-nam’d the Royal Regiment of Foot-Guards; and this will serve as a Key to all the important Transactions of the nine Months following. Do but figure to yourself that extraordinary Personage stalking up, with his usual State, to the Governor, and carrying in his Hand a Pair of Leading-strings ready to put on; the one rejecting the Offer with Scorn, while the other persists in his Rudeness; protesting that his noble Predecessor wore the same honourable Badge; and that the best Lord in the Land might wear it without Disparagement. Keep this Image, I say, in View, and it will give you an adequate Idea of the Behaviour of both. Methinks you are ready to demand some Proof of this. A little Patience, Sir, and you shall have it. But first let us observe the Contrast between the publick Treatment of L——d H—— and that of his Successor, on their respective Arrivals in this Island, when they were both equally Strangers to the People, who had in truth no Experience of either.

On the 13th of April, 1733, my L——d H—— came on Shore, where he found a decent Provision made for him and his Family, and on the 8th of May following, the Assembly address’d him in these words, which are so extraordinary, that I chose to transcribe them from the Council-Book, lest you (who had no Hand in this Draught) should suspect I had mistaken or misremember’d something.

We the Representatives of the People of this Island, do with the most profound Respect congratulate your Excellency’s safe Arrival in this Island, and beg leave sincerely to rejoice with your Excellency at your wish’d-for Happiness in the Safety and good Health of the Right Honourable the Lady H—— and your tender Family, after the Fatigues of a long and dangerous Voyage, which affords us the greatest Satisfaction, as it yields your Excellency the most sensible Blessings and Comforts of this Life.

Edition: current; Page: [987]

It was, may it please your Excellency, with the greatest Pleasure we receiv’d the first News of his Majesty’s great Goodness in appointing a Nobleman of your distinguish’d Merit and Character our Governor; and it was still with greater we receiv’d repeated Assurances from our Correspondents in England, that your Excellency’s precious Time at such a Juncture was chiefly employed in the Service of this poor Colony; such an Instance of Generosity and Humanity affording us an early Presage of what still may be further expected from your Excellency’s favourable Interposition and generous Solicitation for Redress of our Grievances, gives us likewise the greatest Hopes of your Excellency’s Endeavours proving successful. And we are the more confirm’d therein from the several Resolutions of Parliament already agreed to in our Favour. This happy Turn in our Affairs we never could doubt of, from the known Goodness and paternal Care of our most gracious Sovereign, as well as from the Justice of a British Parliament, whenever a generous Advocate appear’d in our Favour to represent the deplorable State and Poverty of this Island. And who so proper as our Governor? A Nobleman for whom, give us leave to say, Providence seemed to reserve the glorious Task; a Task fit only for the ablest Statesman of uncommon Generosity and consummate Parts and Experience; Qualities (we humbly beg your Excellency’s Pardon for affirming a Truth unpleasing only to your Excellency) all centering in the Lord Viscount H—— A Task, rescuing a distressed Country from Ruin; and which therefore must reflect with Honour, and add fresh Lustre to all your Excellency’s other great and noble Qualities; since all good Men agree, that the Glory of being a true and virtuous Patriot to a declining or distressed Country, is superior to, and far more excellent than all the pompous glaring Titles of the greatest Conqueror.

Now, Sir, tho’ I have nothing to say against the able Statesmanship, and the consummate Parts and Experience that center’d in that noble Lord, whose Memory I honour for the Sake of his good Intentions and extensive Benevolence; yet it may be ask’d, I hope without Offence, how these profound Politicians were able to make this Discovery in the Space of Twenty four Days, when hardly any thing had been said or done, except Matters of Form.

More light will still be derived from the Preamble of the Act for settling that Governor’s Appointment, which pass’d the Twenty ninth Day of the same Month, where there are these Words.

The Representatives of his Majesty’s most dutiful and loyal Subjects, the Inhabitants of this Island, taking into their Consideration the present Edition: current; Page: [988] State and Condition thereof, and having the greatest Regard and Tenderness to the Circumstances of the People they represent; but at the same time justly conceiving reasonable Hopes of having their Grievances redress’d from the generous Endeavours of his Excellency the Right Honourable Viscount H——their present Governor, to retrieve the Trade and Condition of this Island, from the time his most sacred Majesty was graciously pleas’d to confer on him the Government thereof, and from the many Steps his Excellency, out of his singular Humanity, has taken for the Relief of the People committed to his Care, and also reflecting on the great Advantages which still may be procured for them thro’ his Influence, and faithful Representation of the many Hardships this Island still labours under, and weighing, above all, the happy Effects of a mild, just, and prudent Administration, which, with the utmost Satisfaction, the Representatives of the People do most assuredly promise to themselves from the excellent Qualities of his said Excellency, &c.

How exalted the Hopes and Expectations of the good People might have been at that Juncture, I cannot take upon me to determine; and I profess myself at a Loss to know what the many Steps were that his Lordship had taken for their Relief. But I remember very well, and You have cause to remember, that my Lord, good natur’d Gentleman as he was, had some time before adopted the Passions of the Speaker, whose Resentment he made you feel, as much as he was able to make you feel it; and that without any Reason or Provocation on your Part. There are other Instances of the same Nature, that can hardly escape your Memory.

But the Coup de Maître of the Speaker is display’d in the additional Act to the former, which pass’d the twentieth Day of the next November, which take as follows.

Whereas the said Sum (3000 l.) of the Currency of this Island is found by Experience not to be sufficient to answer the Ends and Purposes for which the same is intended, the Representatives of this Island seriously taking into their further Consideration the very great Charge and Expence his said Excellency hath already been, and still necessarily must be at, in his constant Endeavour, unwearied Application, Industry, and Diligence, to promote the Welfare and Prosperity of the People of this Island, &c.

—Therefore they vote him another 1000 l. making all together 4000 l. per Annum.

Edition: current; Page: [989]

The End and Purpose for which the first 3000 l. was settled, is declared to be for supporting the Honour and Dignity of the Government, which I can easily believe could not be done with that Sum; but pray, Sir, did you ever hear what those great Charges and Expences were, that attended my Lord’s unwearied Application and Diligence in promoting the Publick Good?

But what do you think, Sir, the Speaker himself was to have had from his poor dear Country, in case he had obtain’d the Government instead of Mr. B——? A Gentleman of undoubted Credit, who was in the Assembly at that time, and whom I can always call upon, assur’d me that this Candidate, when his Hopes run very high, told him, he had been computing the necessary Charges that would attend his expected Promotion; that, inasmuch as he had several Advantages above a Stranger, in respect of his being settled in the Place, he should be able to live with tolerable Decency upon 25 or 2600 l. a Year, which he thought the very least that would answer the Purpose. But the same Gentleman concurs with several more of the Speaker’s intimate Friends in asserting, that he would have had at least 3000 l. and probably another thousand; for there was nobody to oppose it, and he was never known to let slip an Occasion of getting as much Money as he could.

Mr. B—— however had 2000 l. a Year allotted him by an Act of Assembly, dated the 26th Day of February, 1739, because it was well known to be insufficient for affording him common Conveniences without a most strict Oeconomy; by which means he must have lived in a State of continual Dependence. Nay, there are many strong Reasons that induce others as well as myself to think, that if 100 l. more would have satisfied him, and that Sum could have been yearly dug out of a Gravel-Pit, it would have been denied him; because, if given, there would have been nothing more to ask, whereas the fix’d Intention was to keep him in a craving Condition.

The Assembly also voted him 2500 l. to repair his Losses at Sea; but he was far from desiring, nor did he at all relish it, tho’ his Circumstances did not put him above accepting of it. He was, indeed, willing to take it as part of a Salary equal to his Predecessors; but that would not do with his Benefactor, who designed this as a Specimen of the manner in which he was to be supply’d; it was to shew him that he was to be fed from Hand to Mouth, in Proportion as he should continue to deserve favour at the Hands of the sovereign Disposer of the Publick Treasure. Thus you see, as one Assembly, govern’d by the Speaker, settled 4000 l. on Lord H—— at the Edition: current; Page: [990] most distressful Period in all Respects that Barbados ever knew; so another refus’d, under the same Direction, to settle more than half that Sum on Mr. B——, at a time when the Island enjoy’d more solid Prosperity than it had done for twenty Years before. And here it may not be improper to remark, that they had acted the same Farce upon the Nomination of Lord H——, as they afterwards did upon that of his Successor, by entering into Combinations, Protestations, and Oaths, not to settle more than 1500 l. at the utmost. The truth is, the Speaker soon perceiv’d that Mr. B—— was a Man fit to govern, and therefore would not be govern’d; that as he grudg’d no Labour of his own, so he did not care to put others to the Trouble of thinking for him; upon which the other took his Leave formally at Pilgrim, as a Place where he could not expect to be Master any longer; nor did he ever come there again, except once to beg a Favour.

His next Step was going about and publishing his Sufferings in the Cause of his dear Country, affecting at the same time to have a greater Stock of Vigour and Spirits than was natural to him, and crying he was grown young again; the first Day his Age was come back to 45, and in a few Days more to 37, the Governor’s Age: And thus he play’d Gambols thro’ Town and Country for some time; while every Mortal who went to Pilgrim, without an immediate Call of Business, was an Enemy to the Demagogue and to Barbados.

But after all, did not this Gentleman propose to save, and actually did save 2000 l. a Year to the Publick, and is not this some Merit? Believe me, Sir, this was far from his Thoughts; for he was very willing to have loaded the Country with more, if the Governor would have put himself wholly under his Tuition, as is already hinted. And now you’ll give me leave to shew how I certainly know this to be true.

Before any Settlement was made, I saw the Speaker by chance at a third Place; for he seldom came to me, and I never went to him. He thought fit to touch upon the reigning Subject of that Time, which gave me an occasion of hinting, that as the Whole of that important Affair roll’d upon him, so it behov’d him to make the best Bargain he could for his Country; but he would do well to consider, that it was not every Shilling a Man kept in his Pocket, that was so much really sav’d. His Answer was, that there were great Reasons why the annual Salary could not be to the Governor’s Mind, but that Means should be found of making him easy another Way. The same Thing he has repeated on other Occasions. I understood him perfectly well, but knew Edition: current; Page: [991] too he would find himself mistaken, as well on account of his Majesty’s express Instruction against taking Money in that Manner, as against the Governor’s unalterable Purpose of being Independent. Let me add to what is just now said, that those of his Faction made no Scruple of declaring, that Mr. B——g was very imprudent in breaking with their Leader, because he might have had more than 4000 l. tho’ in another Shape than that of a yearly Settlement. And yet some of these Persons would go about, the same Hour and tell the ignorant People that the Speaker was their Saviour and Deliverer from an all-devouring Dragon, whose Hunger was not to be appeas’d with less than 4000 l. a Year.

I believe, Sir, you perceive already, that Mr. P—— had no Merit of this Sort; but if you desire to be past all doubting, please to cast your Eye upon the following Extract of a Letter, which was propos’d to the Governor to be sent by him to the Demagogue. The Original Draught, which is now before me, was pen’d by the Clerk of the Assembly, and by him put into the Governor’s Hands on the 16th of January 1739, as the sovereign Balsam that was to heal all Sores, and without which nothing but Gangrene and Mortification could ensue.

If you believe me, Sir, to be sincere in my Professions, as I most solemnly declare I really am, you can’t be insensible, how much it must affect me to have Disputes or Contests with one of your Character, and be forc’d to lay aside that Activeness I purposed to make use of for the Service of the Island; and instead thereof only to look upon myself sent here to exercise the Authority which my Commission, and the Laws of the Place enables me to do, without considering whether the doing so may be beneficial or prejudicial to the People; for if I am treated with Disrespect, and suspected, I can’t help being jealous on my part; and when that prevails between Persons, little good can ensue. I am well satisfy’d that you, Sir, have no other Views than the Service of your Country, which has long experienced your great Abilities in the Stations you bear; and I can’t help thinking myself unhappy in being appointed to this Government, (which I assure you I was, without seeking for it) after some Steps had been made to have you the Person; which had I known before my Appointment, I believe I should have lost the Pleasure of your Acquaintance, as my Interest, if I had known you, Sir, should have join’d your other Friends for your succeeding; and therefore I flatter myself, that as I knew nothing of the Affair, you will not blame me for appearing here in this Edition: current; Page: [992] Station, but give me leave to afford you part of the Power, while I bear the Name of the Office.

What do you think, Sir, of this curious Piece? Don’t the Leading-strings here stand confess’d? Surely such a shameful Prostitution of the Dignity of Government, as was here contriv’d, needs no Comment. And therefore I shall only observe, that Mr. B——g thought of it as it deserv’d; and leave you to judge whether the Penman dar’d to have made an Overture of this Kind, without the Privity of his Patron.

But to return to the Period when the Settlement was made. The Governor being now at the End of his Hopes, sat down calm and serene, enjoying his Friends, without shewing the least Mark of Displeasure against any one of the Faction. He was sensible he had no legal Claim to 4000 l. or any other Sum; yet he found himself distinguish’d from his Predecessor, much to his Disadvantage, without one plausible Reason to support the invidious Distinction. Yet he did not fail to separate the Innocent from the Guilty, not finding Fault with the Stone that hit him, but regarding the Hand that threw it. He clearly acquitted the People of Barbados in his Conscience, condemning only one Man, who he knew had oppos’d him from the basest Motives; and therefore it is but doing Justice to say, he never quitted his Hold till he brought him fairly to the Ground. He would sometimes say, they had reduced their Governor to live as a private Gentleman; but that was no great Mortification to him, who had always liv’d in that Manner. His Loss at Sea was now accounted a Blessing, because he was depriv’d of an Equipage, which he wanted the Means of supporting. But nothing of this Sort abated his natural Activity; for he was indefatigable in reviewing the Militia, visiting the Fortifications from one End of the Island to the other, preparing wholsome Laws, and reforming the Magistracy, which stood in great Need of a Reformation. In all these Functions, and many more, he shew’d a Zeal and Industry that never have been equal’d here, and perhaps can’t be exceeded any where. This was what the other could not endure, that his Adversary should enjoy Tranquillity, and carry on an easy unexceptionable Administration, in which he had no Share, while himself was eat up with Indignation and Revenge. In short, he lost his Temper daily, in proportion as the Governor kept his.

One of the first Pranks he play’d was in this Manner: He had hurried the President into holding a Council of War on the 8th of November 1739, before Edition: current; Page: [993] the Governor’s Arrival, and even before the Declaration of War had reach’d us. On this Occasion, he, who took all upon himself, mov’d the President, that he would give the necessary Orders to have the Intrenchments repair’d and put into the best Order. The Expediency of the Thing was not to be questioned, had it been seasonable. But after the Declaration of War with Spain was published, and repeated Advices had rais’d strong Apprehensions of a War with France, Mr. B——g express’d his Intentions of having immediate Care taken of the Entrenchments. This Measure, however reasonable or indeed necessary it had been deemed a few Months before, when it was not certain there would be any War at all, was now, when a War actually subsisted, call’d a Piece of great Oppression and Tyranny, design’d to harrass the poor People, because the naughty Governor had been disobliged. The Speaker gets his Assembly-men together, and dictates to them a Message to be sent to the Governor, (not as an Act of their Body, but as their private Opinion) that his Orders for repairing the Entrenchments, tho’ lawful, would not be obey’d; which insolent Message was accordingly deliver’d in Form by the Clerk of the Assembly, when I happen’d to be at Pilgrim. Judge you, Sir, whether it was high Time for Mr. B——g to try who was to be Governor, he, or Mr. P——s? The issuing such Orders which before had been highly proper in Point of Safety, was now become indispensible in Point of Honour. The Commissioners of Fortifications were called together, and directed to take the proper Steps appointed by the Law for effecting this useful Work; but withal to do it in such a Manner as would be least inconvenient and burdensome to the Inhabitants. When the Commissioners for St. Michael’s Division met, Mr. P—— represented to them, that as there was no Assembly then in being (for the Writs were not yet return’d) they could not proceed upon Business legally, before they were join’d by the Members for the several Parishes in their Division. The Act for appointing Commissioners of Fortifications was read, the Words and Meaning of which were clear enough to all, except a very few, who had an uncommon Share of Illumination. It was then resolv’d to take the Opinion of the Attorney General upon the Construction of the Act, which ordains, that the Counsellors, Field-Officers, and Assembly-Men for the Time being, in each Division of the Island, shall be Commissioners of Fortifications, and that any three of them shall be a Quorum. Upon a formal Reference of this Matter, the Attorney-General reported his Opinion, which unhappily differ’d from that of Mr. P——; for he conceiv’d clearly that three made three. But our Hero in Politicks, who was Edition: current; Page: [994] not us’d to be stagger’d by Trifles of Law and Right, declar’d, that the Opinion of no Lawyer on Earth should weigh down his own, for that Lawyers construed Acts by the Rules of Westminster-Hall; but he knew what was the Meaning and Intention of the Legislature, tho’ it could not be collected from the Words. But as the Commissioners in general were Men of Sense and Spirit, they agreed with the Lawyer, that three made three; so that the Demagogue was over-ruled once in his Life, and had no Resource but entering a senseless Protest against the Proceedings of the Board, without any Foundation of Reason, Law or Precedent. A grievous Defeat! owing chiefly to the Absence of his faithful Myrmidons of the Assembly, who were never known to deny him a Vote in any one Instance. In a Word, the Governor was obeyed, and the Work was done, without any Noise, Murmuring, or the least Hardship impos’d upon any one. Let me ask, Sir, if you think such a perverse Trifler as is now describ’d, was fit to be let into any part of the publick Business, from which he might lawfully be shut out, after discovering so untoward and childish a Disposition to embarrass every Thing that was propos’d by the supreme Magistrate, without any Distinction of Right and Wrong?

Soon after this, the Governor having observ’d at his several Reviews that most of the Regiments of Militia had been neglected to a scandalous Degree (many Soldiers appearing without Arms of any Kind, and even without Shoes and Stockings) order’d the Secretary to write Letters to the Colonels of the several Regiments, the Speaker being one, requiring them to make Returns of their effective Men, and of those who were absent, as also of those who were unprovided with Arms, and whether these last were unable to purchase Arms, or for what other Reason they wanted them. The other Colonels made Returns as satisfactory as could well be expected: but the only return that could be got from the Lieutenant-General was a saucy Letter to the Governor, which I have seen; nor could he ever be drawn into an Eclaircissement of the Reasons why so many Men appeared unarm’d, because he well knew it would have come home to himself, who was so notorious for disregarding the Militia-Act, in Point of Arms and Accoutrements, that one of the Appraisers who took an Inventory of all his Chattels, after his Death, assur’d me, that he was surpriz’d to find there were hardly Military Implements enough to equip one Foot Soldier; altho’ the Quota, which he was bound by Law to furnish, surpass’d that of most Planters in the Island, and amounted to a great Number of Men. In a State of War and Edition: current; Page: [995] publick Danger, such Remissness would hardly be thought, in any other part of the World, becoming a Patriot and a General Officer, on whose single Aid the Safety of his Country has been lately said to depend.

While this singular Gentleman was thus bidding Defiance to his Governor in the most lawful and prudent Acts of Government, he took care to inform him that no considerable Change for the better was to be expected. For this Purpose he made use of his usual Conveyance, the Clerk of the Assembly, who in his Letter of the 19th of April 1740, (which I have) wrote to the Governor thus;

From some Discourse I have had with the Speaker, he seems to be in a much better Temper with regard to the Publick, tho’ determined never to be in any great Confidence with your Excellency; and which indeed I fear there is no Prospect of having again renew’d.

An unhappy Circumstance! that at a Time when an Invasion of the Enemy might be apprehended every Hour, no Confidence subsisted between the Captain-General and the next Officer in Command.

I choose to suppress the low Scandal and brutal Scurrilities that were every Day thrown out by the Faction, the mean Artifices incessantly us’d to render the Governor odious to the common People. Raking into such Filth would serve only to blot my Paper, and hurt your Attention. And therefore I proceed to ask, What Mr. B——g could or ought to have done in these Circumstances? If he had alter’d his Measures, it must have been for the worse; for the World could not charge him with one Act of Mal-Administration. Must he have resign’d his Authority to Mr. P—— and contented himself with the Name of his Office? This, indeed, might have made his Peace, because it was the only Bone of Contention; yet I imagine you would scarce have advis’d him to it. You will possibly think there was no Room for Deliberation; there being no other Expedient left, than to pull down this Colossus; at least Mr. B——g was of that Opinion, and accordingly removed him from all his Military Employments, on the 10th of June 1740. This you know, Sir, he might well do, out of the Fulness of his Power, without assigning any Reason, or being accountable. Yet he did not satisfy himself with doing it, because he could do it, but at the next Council of War enter’d his Reasons at large in the Minutes of that Board; the Truth and Validity of which Reasons were sufficiently obvious. The Governor at the same Time took Occasion to express his Approbation of Mr. Ap——te, who Edition: current; Page: [996] is a much better Officer than the other, if you will take the Word of your old Acquaintance, who spent a Part of his Youth in the Army; and says, that tho’ he never knew much of Military Affairs, and has forgot something; yet he remembers enough to satisfy him, that Mr. P—— knew very little of the Matter. I have often heard him assert this in the Life-time of that celebrated General, and give what I thought good Reasons to maintain his Assertion.

The Removal of Mr. P—— affords a remarkable Æra in the late Administration. The Governor had been hitherto no more than the most disagreeable of Mankind in Mind and Body, big with ill Intentions which he never discover’d, contriving mischievous Schemes which no body knew what they were, to be reduced into Action no body knew when. At Cock-fights and Funerals, Parties of Diversion and of Business, these had been the Topicks; and the Poison was swallow’d with the Punch, while no one was at Hand who had Understanding and Fortitude enough to apply an Antidote. Indeed, the less violent Part of the Faction could afford their Pity to the poor Governor, while he had no other Part allotted him than to bear Injuries with Patience. This, I say, had been the Case for some Months; but now the Governor had pull’d off the Mask; here was a flagrant Overt-Act of Tyranny, the Head was cut off from the People, and the Body was next to be mangled. The first Outrage which happen’d immediately on receiving the News of the Dismission, I desire to pass over, out of Regard to some well-meaning Gentlemen, who acted on that sudden Occasion without Thought; after just hinting, that the Behaviour of several of the Officers of his Regiment clearly shew’d, their Colonel’s Talent lay rather in disciplining an Assembly than a Regiment. The Regiment, however, was left all at once without an Officer; and powerful Endeavours were us’d, at second hand, to bring the Officers of other Regiments to follow the laudable Example of these their Brethren; but the Phrenzy was not so general as the Faction wish’d and expected; for it stop’d where it began.

The great Mystery was, who could advise so unaccountable a Step as the displacing this great Man; till a certain Gentleman unfolded it, by asking some of the Faction, if they thought the Governor wanted any Advice in so plain a Matter; or if they thought he had not one Friend to advise him. To relate the Whole of what pass’d, would appear Romance to all but Eye-witnesses. Among Numbers who rejoic’d at this Event, it is strange how few they were who ventur’d to open their Minds. Besides those, whose Mouths were stop’d by Interest, Dependence, or Poverty (for you well know, Love Edition: current; Page: [997] and Esteem had the least Share in Mens Attachment to the Speaker) many who were free Agents, preserv’d, notwithstanding, a strict Caution in speaking; for it really was the Fashion to be afraid of that Man, whose Resentment, like Death, would spare none, but mow down even whole Families. There can’t be a better Proof of this, than the universal Reluctance that possess’d every body against succeeding him in the Command of the Regiment, which prevail’d to so high a Pitch, that the Governor himself was obliged to take it under his immediate Care, and then, by Degrees, he rais’d an excellent Corps of Officers. Yet this too was effected under great Difficulties; for the bare accepting a Commission in that Regiment, was Apostacy and Rebellion; Vengeance was denounc’d against all such Reprobates as would venture to do it, and no Pains were spar’d to intimidate or punish; of which let me give you two or three Instances among several others. Mr. B—— H——, who was put upon the new List to be a Captain, fell off suddenly, and desired to have his Name struck out. As he was a Man of personal Worth, and an independent Fortune, his Friends were alarm’d at this Change of Resolution, and desir’d to know the Cause of it. At first he excus’d himself upon his Want of Health; but being further press’d, frankly acknowledg’d, that he entertained well-grounded Fears for his Sister, who was so unfortunate as to be a Debtor to the Speaker, and would be made suffer for the Fault of her Brother; so that it was not without great Pains he was brought back. Mr. J—— L—— had been recommended by the Speaker to the Governor, soon after his Arrival, when all Favours pass’d through that Channel, to be appointed Clerk of the Courts of Common Pleas; in which he succeeded, because he happen’d to come an Hour before another, who was a Competitor for the Office. This Gentleman afterwards taking the Commission of a Captain, very innocently, and for the Service of his Country as he thought, was branded with the Imputation of black Ingratitude, and said to fly in the Face of his Benefactor. Mr. W—— M——, who was in the Assembly, and who had been one of the Speaker’s Aids de Camp, (for I think he had six) suffer’d himself to be appointed Major to this Regiment. This in him was Treason; Woe and Destruction were to be his Portion; and from that Hour the Faction form’d a Design, which is now carried on with unrelenting Malice, of turning this Gentleman out of his Parish at the next Election; whose sole Demerit is, that of daring to assist in defending his Country in a Time of War, when the Politicks of our Patriot required that it should be defenceless.

Edition: current; Page: [998]

The only Morsel of Comfort he had now left to subsist upon, was the naked Condition of this Regiment, stript of its Officers, without a Prospect of having them replac’d speedily; for it was not all the Activity of Mr. B——g and his Friends, that was able to find a competent Number of free Spirits, in less than several Weeks. And thrice happy it was for the disbanded General that this was the Case; because a charming Address had otherwise been spoiled. The Address I mean, is that of the 8th of July 1740, which you have seen, and will speak for itself. The Respect I owe to the present Assembly cuts short all Remarks of mine upon that extraordinary Performance. I know that Body consists, in general, of inoffensive well-meaning Men, who can have no Interest divided from that of their Country, and when fairly left to themselves, desire to do nothing but what is just and proper; but what Lengths such Bodies are capable of being carried by an undue Influence, don’t need to be explain’d by the Annals of Barbados. I shall only presume therefore to enquire, if the Person who pen’d or dictated that Address, appears to have been in a Humour of sparing Mr. B—— and throwing a Veil over his Miscarriages? If not, why did he not state some particular Fact that was against Law and Right, and not content himself with an unmeaning Charge of unpopular Conduct? For my Part, I never heard that a Governor’s misplacing a Militia-Officer was unlawful; how reasonable and prudent it was, in this Instance, must be submitted upon what has been already said. If it was unpopular, the greater the Governor’s Misfortune, that a Measure unquestionably lawful in itself, and by him judg’d reasonable and prudent, should nevertheless hurt him in the Opinion of the Populace; but all this while there is no Crime. The Consequences of removing this Officer were plainly owing to his own factious Intrigues, and not to any Misconduct in Mr. B——: But further; if this was the severest Address (to say no more) that perhaps was ever presented to a British Governor, it must be supposed, in Favour of the Addressers, that this Governor had committed greater Faults than any other. Why then was there not a Charge exhibited against him in Form? Is there not a Way open to the Throne for all his Majesty’s Subjects? And have not those of this Island in particular obtain’d Justice from that Resort too recent to be forgotten? But perhaps melting Tenderness for Mr. B—— prevail’d, and check’d the Pursuit of Justice.—Let those think so, who have read the Address, if they can. And here, Sir, I can’t help expressing my Astonishment, that Gentlemen in London were capable of receiving those Impressions, which I find Edition: current; Page: [999] they did, from such insignificant Materials as were put into their Hands. One would almost believe, that strong Resentments of the Abuse of Power had degenerated into a Dislike of the Thing itself, and that the People of England were come at length to think it impossible for any Man in Power to be in the Right.

Would you know, Sir, how Mr. B—— behav’d upon his receiving this Address? He put it in his Pocket without reading it, caress’d every Assembly-Man who came in his Way, and the next Day made one of them a Judge.

But though I don’t care to offer my own weak Sentiments of this unparallel’d Piece, yet I can venture to affirm it was not relish’d by the Bulk of the People, according to the Expectation of the Author. They thought the Stile a little too delicate, and the whole too witty for a grave Subject. Some of the Assembly, who voted for the Address, had apprized the Governor of its Contents; and tho’ it pass’d in a full House, where there was not one dissenting Voice, yet many of the Members have, in my hearing, and most of them (as I am inform’d) in the hearing of others, express’d their Abhorrence of the thing. Your old Acquaintance the Storekeeper could hardly sit in his Chair while it was read in the House, and express’d his Disapprobation by Shrugs, Distortions, and Interjections. And I must not omit telling you, that the next time he came to Pilgrim, the Governor rallied him on his voting for the Address, with a great deal of good Humour. To which he reply’d—By G——d, Sir, I did not like one word of it, being convinc’d your Excellency had not deserved to have such things said to you; but your Excellency very well knows we are sometimes obliged to vote for things we don’t approve of. Argumentum ad Hominem.1 It was owing, however, to the Moderation of the Speaker, or to something else, that it did not contain an Accusation of High-Treason, for even that would not have made it miscarry in the same House. But this was not all; for he had the Mortification presently after, to hear of the Regiment being well Officer’d, and in a fair Way of being put into better Order than when he commanded it. This was a mortal Stab, the Anguish of which could not be asswaged by all the Noise of Faction, and the Incense of Sycophants; for he was sick at Heart. The Address and the Bundle of Libels sent to England were no better than Palliatives. It is certain he declined visibly, and continued in a languishing Condition till the fourth Edition: current; Page: [1000] of September, when he made his Country some amends by leaving it, I hope, for a much better.

His Death seemed no unfavourable Event for Mr. B——; yet he was far from being elated by it. The Fact is, he had lost all Glee for every thing the Country could do for him; he said they had degraded him, and taught him to live, as a Governor, upon 2000 l. a Year, and he was perfectly indifferent whether he should be put to the Trouble of spending more. His Sincerity, in this Respect, I could prove by something more than Words; let it suffice that I assure you I have as clear Evidence of it as one Man can have of what another thinks.—Neither he nor his Friends shewed any token of Joy or Triumph; no indecent Expression escaped from any of them, tho’ he has been falsly charged with it. A Behaviour very different from what was shewn by some others but a few Weeks after. The worst thing he was ever heard to say upon the Occasion was, that he was only sorry the Speaker did not live some Months longer, that he might have made him more compleatly ridiculous; which I can say, of my own Knowledge, he had fully in his Power, and would have done to the Purpose. He had in truth a sincere and hearty Contempt of that Person almost from the first Sight of him, insomuch that I never have known him laugh so cordially at any other Subject, and that too in the very Article of contriving the means of coming up with him. It is with true Regret that I am urg’d to say so many things to the Disadvantage of the late Speaker’s Character; I could have been well satisfied that his Faults had been buried with him; I have not wantonly or maliciously taken up my Pen to disturb his Ashes; but himself and his Friends have been the wicked, wilful Authors of my Trouble, and their own Reproach. Had they been so just as to speak nothing but Truth of Mr. B——, I had been so charitable as to say nothing of them. But when once it becomes unavoidable, that either Guilt or Innocence must suffer, an honest Mind can’t deliberate long upon the Alternative. And yet the most partial of his Friends must allow, upon Recollection, that I have been far from indulging Ill-nature, or private Pique. Were I govern’d by Motives of this Kind, or were I to make Reprisals for the inhuman Treatment Mr. B—— and his Family have suffered; I could open a Field where the most inveterate Rancour might sport, without violating Truth, or resorting to any other means than a simple Narrative of Facts, which can be vouch’d by almost every Man or Woman in this Island. After all, one is really at a Loss which to admire most, the Wickedness or the Folly of this Faction. Could they imagine it feasible to blow up the King’s Edition: current; Page: [1001] Governor with one Blast of Slander, without allowing him a Hearing, or any Means of defending himself? Did they believe there were no honest Men in Barbados, such as had never bow’d the Knee to Baal, who would be ready to vindicate his Integrity, and expose their Malice? What could be expected from so vile an Enterprize, conducted by Persons who had neither Parts, Learning, Address, Knowledge of the World, or in truth any Talents, except matchless Impudence, and an Intrepidity in Lying?

On the Death of the Speaker you’ll imagine the Complexion of Things was chang’d. Some who seem’d to have forgot the Way to Pilgrim, came thither in Crowds, where they found a chearful Countenance, and a hearty Welcome. It was visible, that the Governor made a rapid Progress in gaining the Affections, and quieting the Minds of the Inhabitants, in spite of the most treacherous Efforts to the contrary; so that there was no room to doubt his Composing all Differences in due time, by over-coming Evil with Good. But this fair Prospect was soon marr’d; for he was snatch’d away, about a Month after his Adversary, by a malignant Fever, that had been fatal to Lord Howe, and many other Strangers. He died the 6th of October, with that Resignation and Fortitude, which is peculiar to Men of Sense and Probity; much too early for this Colony, as well as for his Family; esteem’d, belov’d, and lamented by all who knew him well; hated by those who knew nothing of him. Why was not the Publick Sorrow for the Loss of such a Magistrate as universal, as it was at the Death of his Predecessor?—The latter wore the Demagogue’s Leading-Strings till they galled him; the former disdain’d even to put them on. A sad Example of the Lottery of Characters! But it is not for me to enter into grave Reflections, but leave that to you, who can do it much better.

Thus, Sir, I have given you a long History of a short Administration, in doing which I am not sensible that I have aggravated any thing on one side, or extenuated on the other. The two Persons, how unequal soever, who make the principal Subject of this Letter, are now in their Graves; so that I can’t think it were possible to find a more infamous Employment, than sacrificing the Memory of either to that of the other, at the Expence of Truth. I fancy, Sir, you can hardly forget that I have no Partiality for Men in Power; and of all mortal Men in Power, I have the least Tenderness for Governors, whom I have had Occasion, more than once, to regard as Grotesque Figures, dress’d up to shew the ridiculous and weak Side of Government. But I must confess with the same open Sincerity, that I could plainly discover, in the Edition: current; Page: [1002] Magistrate so often mentioned, better Intentions, and a greater Alacrity in executing them, than I had ever seen before in the same Station. I shall not dwell upon his Affability, good Nature, his Readiness to oblige, with a happy Manner of conferring Favours; his Hospitality, which tho’ supported by a Pitance, excelled every thing that you or I have seen in this Place; all these I regard only as the Trappings of his Merit. Allow me only to offer one Proof, among many of more substantial Worth. His Moderation was such, that he never would entertain a Thought of doubling the Number of the Matrosses, which he might have done at any time for eight Months together; being not only enabled, but seemingly required so to do, in a time of War, by a positive Law. Yet because it would have put the Country to a yearly Expence of 2250 l. which did not then appear to be absolutely necessary, he generously suspended the Execution of his Power in this Particular. Possibly, Sir, you will think some disoblig’d Governor, of a more vindictive Spirit, would have triumph’d in convincing the People, by making them feel that they had lost clear 250 l. a Year by their Bargain. I have sometimes thought a more harsh Temper would have better suited the rugged Task which Fate assign’d him; and I must own he wanted that happy Indifference for Good and Evil, which so eminently distinguish’d some of his Predecessors, who far’d much better; not by any superior Address, or Management of theirs, but by Conjunctures so favourable, that they could not help being prosperous.

The Members of his Majesty’s Council have unanimously born Testimony to the publick Acts of Mr. B——’s Government. The Lawyers to a Man applaud in him the patient upright Judge. The Wise and Virtuous, throughout the Island, give him their Suffrages. To him we owe the best, the only good Commission of the Peace that any Man living has seen here, and this his Enemies confess; for he effectually clear’d it of all the Rubbish with which the Demagogue had loaded Lord H——’s Commission. He abhorr’d from his Soul all unworthy Promotions, more especially such as concerned the Distribution of publick Justice. The Concurrence of your best Friends gives a Sanction to what I write. As they interest themselves in the Cause of Justice and Truth, so they recommend it to your Care, well knowing that such a Cause is worthy of your Character, and suitable to your Disposition; for you delight in doing Justice both to the Living and the Dead. The perfect Acquaintance you have, as well with the Scene of Action, as the Genius and Spirit of most of the principal Actors, enables you to form the most Edition: current; Page: [1003] exact Judgment of the whole, and to enlarge upon several Passages that are deliver’d only in the Way of Hints, and might therefore appear obscure to a Person less inform’d. Your Friends declare you’ll run no risque in assuring those of Mr. B——, that he did nothing abroad to lessen the good Opinion they had of him at home; on the contrary, that many Parts of his Conduct must have rais’d their Esteem, had they been Witnesses of some Qualities, that can’t be sufficiently display’d without being the first Man in a Place. They desire that his Cause may be try’d by Facts, not by general Assertions and equivocal Expressions. His Enemies are called upon to shew, that this haughty imperious Governor (as he has been called) ever treated those who came near him, even themselves, with Disdain, Anger, Distance, or indecent Language; that this avaricious Man ever made the least Attempt upon private Property or publick Treasure; that this Tyrant did one illegal or oppressive Act: Let them shew all or any of these things, and then I will give up all I have said for Slander and Fiction.

Is it then possible there should be found People so lost to all Sense of Virtue, and even of Humanity, who can study to reverse the Character of a Gentleman, and paint him black, when they know in their Consciences he is of a contrary Colour? to do this without Shame or Remorse, when there can be no Pretence of Mistake, Misinformation, or Surprize? The natural Answer is, there have been such very lately in this unhappy Spot; and I have no Scruple in pronouncing, from a certain Knowledge of what my Eyes have seen, and my Ears heard, that any Man in England would have met with Mr. B——’s Fate, had he come in his Place, and done his Duty; I am not certain, however, that many others would have born it with the same Equality of Mind. Hard is this Gentleman’s Lot! that, he who took more Pains to do good than I ever thought of experiencing in a West-India Governor, should be at last beholden to a surviving Friend to prove that he did no harm!

I must not conclude, without apologizing to you for making this Letter publick before it reaches you. My Reason for so doing is this, as it contains nothing that ought to be a Secret, and has little or no personal Relation to yourself, I was resolved to give the Enemies of our late Governor that fair Play which they denied him. They have now an Opportunity of maintaining their general Charge, by descending to Particulars, and refuting what is here offer’d in his Vindication. This, I am sure, is what they can’t do, and consequently they will be left without Excuse. I defy Mankind to answer the Facts that I have stated, otherwise than by a Vote of the House. It was judg’d Edition: current; Page: [1004] more than possible, that some Dirt might stick where so much had been thrown, and that this was the most likely Method to disabuse those who had given way to wrong Impressions. Be this as it will, I have endeavour’d to acquit myself of the Task with which you were pleas’d to charge me, without any other Merit than that of being,

SIR,
Your most Obedient Humble Servant.
Tho. Baxter.
Edition: current; Page: [1005]

36: Samuel Chew, The Speech of Samuel Chew, Esq. (Philadelphia, 1741)

Throughout colonial British America, judges routinely delivered speeches or charges to grand juries at the opening of their sessions. Intended to be instructive, these charges usually consisted of discourses on the function of law and its relation to the protection of life, liberty, and property and the regulation of social behavior as it had emerged out of the English common law tradition over the centuries. They often contained specific definitions of crimes that informed juries about exactly what sorts of behavior came under what category of offense. Several of these found their way into print, and this speech by Samuel Chew, chief justice of the proprietary colony consisting of the three “lower counties” which had the same governor as Pennsylvania but a separate legislature and court system and in 1776 would become the independent state of Delaware, is one of the most interesting examples. It was somewhat exceptional among such charges because Chew used the occasion to argue the case for the “LAWFULNESS OF DEFENCE against an armed Enemy,” a subject then under discussion because of Quaker refusal to bear or support the bearing by others of arms in neighboring Pennsylvania. Himself a Quaker, he cited natural law and many biblical passages to make the case that “what is called Estate, or Property, was as absolutely essential to human Happiness as even Life or Liberty; and therefore [that] some Means of securing and preserving Life and Liberty, and what every Individual had purchased and made his own, by his Labour and Sweat of his Brow, were indispensibly necessary,” that willingness to use force was therefore “necessary to that Preservation, Edition: current; Page: [1006] and consequently, that War was allowable.” This publication was one of the many attacks on Quaker pacifism that would occur during the midcentury intercolonial wars between 1739 and 1763.

Born in Maryland and a physician and estate owner by occupation, Chew moved to Delaware in 1738 when he was already in his mid-forties and was appointed chief justice in 1741, the year that this document was published. He died just two years later in 1743. (J.P.G.)

Edition: current; Page: [1007]

the

SPEECH

of

Samuel Chew, Esq;

Chief Justice of the Government of

New-Castle, Kent and Sussex

upon Delaware:

Delivered from the BENCH to the GRAND-JURY

of the County of New-Castle, Nov. 21. 1741; and now

published at their Request.

PHILADELPHIA: Printed and sold by B. FRANKLIN.

M.DCC.XLI.

Edition: current; Page: [1008]

The Speech, &c.

Gentlemen of the Grand-Jury,

It is with Pleasure I see, at this time, a Grand Jury that I am convinced do not require much to be said to them, to instruct them in their Duty, or the Occasion of their being called here: However, Custom makes it necessary that something should be said to you from the Bench: I hope therefore you will give me your Patience, if, instead of confining myself to Subjects that relate more immediately to your Office as a Grand Jury, I take up some Part of your Time in treating of a Matter of more general Use, and of the greatest Importance to the Publick Safety; the Lawfulness of Defence against an armed Enemy.

It may, perhaps, at first View, seem strange that there should be any Occasion to prove a Thing in its own Nature so evident: But whoever reflects, that this very Point has taken up a considerable Part of the publick Debates in a neighbouring Government; to which we are nearly related, and what a Number of Abettors the Assertors of the Unlawfulness of all kind of Defence have found, will be less surprized at it. For my own Part, I look upon this Doctrine not only to be without Warrant or Colour, either from Reason or Revelation; but in its Consequences pernicious to Society, and intirely inconsistent with, and destructive of all civil Government. But as Opinions, otherwise than as they are supported by Reason, ought to be but of little Authority; I will endeavour to discuss this Point fairly, and to set the Matter in a true Light. First, By shewing how the Case stood under the Law of Nature. Secondly, That no Religion whatsoever, founded upon any pretended supernatural Revelation of the Will of GOD, can be true, that is inconsistent with or repugnant to the Law of Nature: And Thirdly, I propose to examine some of the principal Authorities from Holy Writ, which the Patrons and Assertors of the Unlawfulness of Defence, under the Gospel-Dispensation, have adduced to prove their Point; and to shew that these Authorities are so far from supporting their Doctrine, that they are either quite foreign to the Case, or that they militate directly against the Adducers of them.

Some Men of great Learning and Knowledge have amused themselves and the World, with endeavouring to discover what great End the Supream Being proposed to himself in the Creation of the World, and of Mankind in particular; and have formed various Conjectures about it. Certain, however, Edition: current; Page: [1009] it is, that an Addition to His own Happiness could not be the Motive; because He must necessarily have been infinitely happy from all Eternity. And it is no less certain, that such a Being, as we all understand GOD to be, a Being of infinite Goodness and Benevolence, could not possibly intend the Misery and Unhappiness of a Number of rational Creatures, by himself to be brought into Existence out of nothing: On the contrary, no other End than the Happiness of Mankind in their Creation, can consist with the natural Notions we entertain of GOD. If then it be admitted, that GOD created them with a View to their own Happiness, it must necessarily follow, that he afforded them the Means of acquiring such a Degree of it as he intended them, and as was suitable to their Circumstances in the World wherein he had placed them. Accordingly, we find the great Author of our Being has so fashioned and contrived us, that a Desire of Happiness, which is of so much Importance to us and the End of our Creation, is made the very first Principle, or Law of our Natures. And it is reasonable to suppose, that in a State of Nature the first Things upon which Men cast their Thoughts, were the procuring Food to satisfy the Cravings of Appetite, Raiment and Houses to shelter them from the Injury and Inclemency of the Seasons, with such other Conveniences of Life as concerned their immediate Preservation and Comfort. But, alas! Experience must very soon have taught them, that these Things were vastly insufficient for their compleat Happiness; and that, were they to stop there, they would fall infinitely short of the End. Life and Liberty, the immediate Gifts of GOD, were common to all Men; and every Man had a natural Title to an uncontrouled Enjoyment of them, and, consequently, a Right to preserve and defend them from the Injuries and Attempts of others, as they concern’d his Happiness: And what is called Estate, or Property, was as absolutely essential to humane Happiness as even Life or Liberty; and therefore some Means of securing and preserving Life and Liberty, and what every Individual had purchased and made his own, by his Labour and Sweat of his Brows, were indispensibly necessary. If, indeed, all Men, from the Beginning, had acted up to the genuine Law of Nature, and had done what was perfectly right, all other Provisions or Laws would have been useless. But instead of this, in the Order of Time, a Spirit of Rapaciousness and Corruption appeared in the World; and some, by a fatal Mistake, endeavoured to find their own private Advantages and Happiness, by making a Prey of the Lives, Liberties and Properties of others, by Violence and a strong Hand. And it is more than probable, that Men Edition: current; Page: [1010] in a State of Nature, before they had incorporated themselves into political Societies, must have suffered much, as the more Innocent and Weak were exposed to the Insults and Invasions of the more rapacious and strong; and more especially, as it was no easy Matter for interested Persons, destitute of any other Rule than Moral Rectitude for the Determining Right and Wrong, to decide Disputes about Property and Jurisdiction. The natural Desire then of Happiness, and that Principle of Self-Preservation, common to all Men, must first have inspired them, for their common Protection and Safety, with Notions of Compacts, of Laws, and of Government, as absolutely necessary, and without which it was impossible for them to be happy in any Degree.

Now the Difference between Men in a State of Nature, and their being incorporated into political Societies, consists in this: That in a State of Nature there being no common Judge to whom Men could appeal, every Man had a Right to judge of and to punish Offences committed against him, according as the Heinousness of the Facts, in his Opinion, deserv’d: But in the other Case, having given up that natural Right of private Judgment into the Hands of the Community, he resorts to the Community, when he thinks he is injured, as to a common Judge or Umpire, and submits his Cause to be determined by the established Rules of the Society for deciding Controversies between the Members of it, indifferently. But Societies themselves, with regard to one another, having no common Judge between them to whom they can appeal, may be properly said to be in a State of Nature, and to retain that Right of private Judgment, that every single Man naturally had, to repel and punish Injuries committed against them. And it would be exceedingly ridiculous to suppose, that a Number of Men, formed and united into a political Society for their common Safety and Happiness, should thereby lose any Part of that natural Right, of preserving and defending themselves from a foreign Enemy, that every Individual had before such Union.

If then Men must have been miserable without the Aid of Government and civil Society; the Preservation and Defence of that Government or Society must necessarily have been right by the Law of Nature, and consequently agreeable to the Will of GOD, who was the Author of that Law, and had given Men no other general Rule. Let us then consider in what Manner any political Society can possibly be affected, so as to make any kind of Defence necessary for its Preservation. And it cannot possibly Edition: current; Page: [1011] happen but one of these two Ways, to wit, either from some of the Members of the Society conspiring against it, and acting contrary to the Laws and fundamental Constitution of it; or from some foreign Enemy, by Force of Arms. It will be readily yielded, by those that oppose the Lawfulness of Arms, that Rebels and Traitors ought to be punished according to the utmost Rigour of the Laws they violate, because they themselves are Parties to those Laws, and bound to the Observance of them by their own Compacts. But what is to be done in case of a foreign Enemy, seeing here is no Compact? I know of no Alternative, but the Relying upon Prayers and Tears, or resisting by Force. And if the Aid of Prayers and Tears may be relied on in such Cases, they may be depended on against Rebels and Traitors, and in all other Cases, and consequently all Government is useless. But the Usefulness and Necessity of Government has been already shewn, as also the Right of preserving it: And if Force is at all necessary or lawful, no Medium can possibly be assigned between the least and the greatest Degree of it; and there is no Way to resist an Army but by an Army, nor to repel Force but by Force. I believe it will hardly be insisted on, that an Indictment against the General and Principal Officers of an invading Army, would be any Security at all; and any Attempt of that Sort would serve only to be laugh’d at, and to be a standing Jest amongst the Rest of Mankind. If then Government is essential to human Happiness, as has been seen; if the Preservation of Government is equally essential; and if Force is necessary to the Preservation of Government; it very clearly follows, that War was lawful by the Law of Nature; because if it were otherwise, Men would be denied the Liberty of using the Means necessary to that Happiness which GOD designed them, and which was the End of their Creation; which would be absurd.

As I have mentioned the Law of Nature to you, and have proposed to shew, that no Religion, founded upon any pretended supernatural Revelation of GOD’s Will, can be true, that is repugnant to the Law of Nature; it will be proper to explain to you what I mean by it. By the Law of Nature then, is meant the Law of Reason, or in other Words, it is such a Rule for the Doing what is fit and proper for rational Creatures to do as they are capable of discovering by the right Use of their natural Faculties, unassisted by supernatural Revelation. This Law of Reason is the general Law of our Natures, and claims GOD for its Author; and therefore may, with the greatest Truth and Propriety, be called the Law of GOD Himself. And as GOD Edition: current; Page: [1012] is infinitely wise and good, it would be downright Blasphemy to say, or to suppose, that he would give Men a Rule for their Conduct that was not adequate to the End for which he gave it; or that a Conformity of human Actions to this general Law of GOD, would not justify Men in his Sight; and much more to say, it would displease him. Whatsoever therefore was right, whatsoever was fit, whatsoever was lawful for Men to do, in order to procure Happiness, under the Law of Nature, must have been eternally so, as being founded in the very Nature and Reason of Things: And whatsoever is right, fit and lawful from the Nature and Reason of Things, must necessarily continue to be right, fit and lawful to all Eternity. GOD is the same to Day, Yesterday and forever: In him is no Change or Variableness at all; but his Ways are constant and uniform. Hence it most evidently follows, that any Religion, or any Part of a Religion, that is pretended to be built upon a supernatural Discovery of GOD’s Will, cannot possibly be true, that is inconsistent with, or repugnant to the primary Law of GOD, or Law of Nature, which is the same Thing; because it would imply Imperfection, Change and Variableness in GOD, which are contrary to his very Nature. For Instance; the Practice of Morality is of eternal Obligation; and Part of the Law of Nature, and is so absolutely essential to Man’s Happiness, that without it he cannot possibly be happy in any Degree: Justice, Benevolence and Gratitude are moral Virtues: Now, suppose it possible that any Person having a Power, or appearing to have Power, to work the most stupendous Miracles, should pretend an Authority from GOD to teach Mankind, that the Exercise of Justice, Benevolence and Gratitude was wrong and displeasing to GOD; would such a Person deserve any Credit? And would not all wise and good Men conclude him to be either a Devil or an Impostor? Surely they would! And the Reason is plain, because such Doctrine is diametrically opposite to right Reason, and contrary to our natural Notions of GOD. Now as Government and political Society have been clearly shewn, from the very Nature and Reason of Things, to be essentially necessary to human Happiness; that the Preservation of Society is no less essential; and that Force is requisite to that Preservation; If any Man, or even an Angel from Heaven, should pretend an Authority from GOD to pronounce all kind of Defence to be unlawful, he ought to be rejected as a Liar and an Impostor. Those therefore that pretend to make out from the Bible, that War, in every Shape, is forbidden under the Gospel-Dispensation, will infallibly prove the Bible itself to be wrong, or themselves to be very wrong Interpreters of it.

Edition: current; Page: [1013]

Let none, from this Manner of speaking, imagine that I intend to insinuate any thing to the Prejudice or Discredit of the sacred Writings, or to cast any Imputations upon the Bible: Far, very far, be that from my Thoughts. On the contrary, though I do insist that the Bible would be no Warrant, nor ought to be of any Authority to support a Doctrine inconsistent with human Happiness, by prohibiting the necessary Means leading to it; yet, I do likewise assert, that it cannot justly be impeached with any thing of this Nature. And I hope I shall be able clearly to make out, to your Satisfaction, that there is not the least Colour of Authority from the Scriptures, to prove that a just and necessary War is forbidden to Christians; but that those Texts of Scripture that are commonly made use of by those who deny the Lawfulness of Self-Defence to Christians, are either misunderstood or grosly perverted by them. It would detain you too long, Gentlemen, were I to examine and consider all the Parts of Scripture that have been frequently cited upon this Occasion. I shall therefore select some of the principal Texts that I find quoted by an Author of very great Note* and some others on the same Side of the Question, and endeavour to shew that they carry no such Interpretation as these People pretend.

Those Parts of Scripture that are alledged as Authorities in this Case, are said to be either Prophesies, importing an entire Cessation of War under the Gospel; positive Precepts, forbidding the Use of the Sword to Christians; or general Precepts, that prove War to be incompatible with Christianity, and opposite to the Temper and Spirit of the Gospel. To the first of these, the famous Prophesies in the Books of Isaiah and Micah are constantly cited, and great Stress has been laid thereon. In order therefore to the clear Understanding this Prophesy, I will trouble you with the Passage at large, which runs thus; And it shall come to pass in the last Days, that the Mountain of the Lord’s House shall be established in the Top of the Mountains, and shall be exalted above the Hills; And all Nations shall flow unto it. And many People shall go and say, Come ye and let us go up to the Mountain of the Lord, to the House of the God of Jacob, and he will teach us of his Way, and we will walk in his Paths; for out of Zion shall go forth the Law; and the Word of the Lord from Jerusalem. And he shall judge among the Nations and shall rebuke many People: And they shall beat their Swords into Plow-shares, and their Spears into Pruning-Hooks; Nation shall not lift up Sword against Edition: current; Page: [1014] Nation, neither shall they learn War any more. Oh House of Jacob come ye and let us walk in the Light of the Lord. Happy, happy, oh happy indeed will the World be in the blessed Accomplishment of this Prophesy! The true and genuine Construction of this Passage appears manifestly to be, That in the latter Ages of the World, or in the Fulness of the Gospel-Times, all Nations shall so universally adhere to the Law of GOD, that Righteousness shall be established in the Earth; every Man shall do what is right and just; none shall injure or violate the Right of his Brother, his Neighbour, or his Friend; and in Consequence of this, War will naturally cease and be abolished, as the Effect will naturally vanish when the Cause is taken away; Swords, Spears, and other warlike Implements will become useless Lumber, or in the Language of the Prophet, may be converted into Plow-Shares, and other Implements of Husbandry. Now as no Man can pretend that the Prophesy in this Sense is yet accomplished, but that these happy Days, this glorious Reformation is yet to be expected in GOD’s due time, it is certainly a most unnatural Conclusion, to infer, that War, which was lawful in order to repel lawless Force, shall become unlawful before lawless Force is eradicated and extinguished from amongst Men. Let us, for Illustration of this Matter, suppose the Prophets to have said, That in the Fulness of the Gospel-Times the Earth shall spontaneously pour forth her Increase; Corn, Wine and Oil shall flow without the Hand of the Labourer; Plow-shares and Pruning-hooks shall then become useless; Labour and Toil, the sad Effects of the Fall of Man, shall utterly cease and be no more. Would not that Man, who in the Expectation of the Accomplishment of such a Prophesy, should neglect to cultivate and sow his Field, or to prune his Vineyard, before the promised Time, be in Danger of Starving? And might he not justly be reputed mad by the rest of Mankind? And yet upon no better Foundation do they build, who affirm the Unlawfulness of War, upon the Authority of the before-cited Prophesy.

The noted Writer before-mentioned urges against the Lawfulness of War, “That Christ said his Kingdom is not of this World, and therefore that his Servants shall not fight”: Preposterously inferring, that because Christ would not permit his Disciples to fight in a Case wherein Fighting would have been quite improper, that therefore those that fight in any Case are not the Disciples or Servants of Christ. I have wonder’d to find the Place here alluded to, so monstrously tortured and perverted by this Author, and others, contrary to the express Sense and Meaning of it! Our Edition: current; Page: [1015] Saviour being questioned by Pilate concerning his being King of the Jews, and of the Offence he had been guilty of towards the Jews, by whom he stood accused, and who had delivered him unto Pilate, answered, My Kingdom is not of this World: If my Kingdom were of this World, then would my Servants fight that I should not be delivered to the Jews: But now is my Kingdom not from hence. The Design of this Declaration seems to be in order to undeceive the Jews, who entertained gross and partial Conceptions about the End of Christ’s Coming; and believ’d it was to establish an outward Kingdom at Jerusalem, and to restore the House of Israel. But this was not the Case. He came to erect a spiritual Kingdom to be set up in the Hearts of Men, there to bear Rule and Government, to reform a corrupt World, and restore Men to their primitive Natures. Here Reason, Persuasion, and such Things as tend to convict the Judgment and inlighten the Understanding, were the proper Means, were the only ones used by him. Force would have been absolutely improper, and therefore is disclaimed by him. But he is so far from condemning Force, in all Cases, that he expresly tells Pilate, that were his Kingdom of this World, then should his Servants fight in Defence of his Person. As if he had said, Were my Kingdom a temporal Kingdom, to the Preservation of which Fighting is not only lawful but necessary, my Servants would then have done their Duty, and have fought for me, as the Servants of other temporal Princes do in the like Cases.

The Apostle saith, That the Weapons of our Warfare are not carnal but spiritual: But says our celebrated Writer, “The Weapons of outward Warfare are carnal, such as Cannon, Muskets, Spears, Swords, &c. of which there is no mention in the Armour described by Paul,” and thence infers that War is noways lawful to such as will be the Disciples of Christ. A hopeful Inference truely! Here was a Question about a Matter of Fact; whether the Weapons made use of in the Propagation of Christ’s Kingdom were carnal or spiritual: The Apostle, who figuratively was a Soldier in Christ’s Cause, decides the Question, and declares the Weapons were spiritual and not carnal; Ergo, quoth our Author, the Use of carnal Weapons are unlawful to Christians. Is this a fair Conclusion? It is, no doubt, unlawful to propagate Religion by the Sword; but, surely, that does not render the Use of the Sword unlawful in all Cases. It is somewhere said, the same Apostle was a Tent-maker, and if it had been added, that he was not a Shoemaker; the Conclusion that therefore Shoemaking was unlawful, would be equally just, as to infer, that because carnal Weapons were not used by Christian Priests Edition: current; Page: [1016] in a Case wherein they could have been of no Service, that therefore it is unlawful to use them in any Case.

The Apostle James testifies, That Wars and Strifes come from the Lusts which war in the Members of carnal Men: But, says our Author, “true Christians have crucified the Flesh with its Affections and Lusts: Therefore War is unlawful.” How does this Conclusion follow from the Premises? Every kind of Wickedness proceeds from the same Cause here assigned by the Apostle for Wars and Strifes: Does it therefore follow that no Sort of Wickedness is to be resisted or punished? If so, we may shake Hands with all Government: Treasons, Murders, Rapes, and every other Crime, shall go unpunished, seeing they all come from the Lusts that war in the Members of carnal Men. It is not denied but War is a very bad Thing, and brings dreadful Consequences along with it. The same may be said of Law-Suits. But does it therefore follow that an unjust Invasion of our Country, by foreign Enemies, is not to be opposed or resisted; or that we are not to contest an unjust Claim set up against our Estates. In either Case, one Side must be wrong; and it is the Agressor, the Wrong-Doer, that is chargeable with the Consequences, and not those who innocently and rightfully defend their Lives or their Properties. And I should be glad to learn from such as infer the Unlawfulness of War from this Text, how any other Strife comes to be lawful; and in particular, how they will justify going to Law upon any Pretence whatsoever; for surely it will not be contended, that going to Law is not Strife.

Again, the Apostle saith, That we fight not with Flesh and Blood: But, says our Author, “outward War is according to the Flesh, and against Flesh and Blood: Therefore War is noways lawful to Christians.” But how fairly is this Consequence drawn? Saint Paul was a Christian Priest, imployed to spread and propagate the Gospel: Preaching was his Profession, not War. This being the real Fact, the Apostle mentions it as such. And if he had said, we dispute not about Men’s Properties or Estates, which was likewise true, he would thereby as much have condemn’d the Profession of the Law, as he does, in this Place, the Unlawfulness of War.

But, it is said, we are commanded not to resist Evil, but whosoever shall smite thee on the one Check, to turn the other: And if any Man sue thee at the Law, and take away thy Coat, give him thy Cloak also, &c. Now these Words are either to be taken in a restrained and qualified Sense, or in a literal and unqualified Sense. Let the Advocate for the Unlawfulness of War, upon this Authority, take them either way, and they will find themselves hooked Edition: current; Page: [1017] into a Dilemma. If the Words be taken in a qualified Sense, they will not prove the Point contended for: And taken the other Way, they will prove too much; for not only War becomes unlawful, but going to Law in Defence of Property, and all Punishment of Criminals, will be likewise unlawful, which is contrary to their avowed Principles and Practices. For it can never be pretended, that the Hanging a Thief or a Murderer is not resisting of Evil; or, that he that prosecutes another at the Law, for an unjust Violence committed against his Person or Estate, conforms to the literal Sense of the Text. The Truth is, that the Words cited, with all that follow to the End of the Chapter, were spoken by Christ to his Disciples only, and seem to be intended as Rules to them, for their Conduct and Behaviour, in the Discharge of their Ministry, in order to convert Men to Christianity. But if we admit that they were intended as Lessons to Christians in general, they can import no more than that it is not lawful to revenge Injuries, and that, in many Cases, it is better patiently to bear some Injuries than to seek Redress and Satisfaction by returning them.

When I consider the Abilities of the Author so often quoted, and how great a Master of Reason he appears to be when he has Reason on his Side; and compare therewith his Manner of Defending the Position, “That War is unlawful to Christians;” I confess, I am tempted to call his Sincerity in Question. His inferences and Conclusions are certainly unworthy his great Parts. And his constantly Coupling Revenge and War together, as if they were convertible Terms, seems to be a Piece of Craft, calculated to deceive and mislead the Unwary. No Christian, I believe, ever doubted that Revenge was unlawful to Christians: but how will it be made out that there can be no War without Revenge? As well may it be said, that putting a Malefactor to Death is Revenge, as that Killing Men, in Defence of our Lives, is so. Nay, it looks more like Revenge to put a Man to Death in cool Blood, after the Fact, than to kill him in the Attempt, in order to prevent him. “Christ,” saith our Author, “the Prince of Peace, hath expressly prohibited his Children all Violence.” Could this Man be ignorant that the Violence here prohibited is an unjust and forceible Attack upon the Rights of others; and not the Resisting of such unjust Force? I should be glad to know how Hanging a Murderer or Thief can be done without Violence? And if Violence is lawful after the Fact is committed, I should gladly be informed, by some distinguishing Head, how Violence comes to be unlawful (when all other Means fail) in order to prevent the Mischief.

Edition: current; Page: [1018]

Doing Good for Evil, Loving our Enemies, and Praying for those that persecute and calumniate us, are, no doubt, Christian Duties: So are Cloathing the Naked and Feeding the Hungry. But, as we are not required to cloath the Naked and feed the Hungry, and want ourselves; so neither are we obliged to strengthen the Hands of an Enemy against ourselves; nor to pray for his Success, when he aims Destruction at our Heads; nor to love him as if he was our Friend. We ought, indeed, to exercise Kindness and Humanity towards our Enemies, when we have them in our Power, and may do it with Security to ourselves; try to win and reclaim them, by Gentleness, Forbearance and Charity, and to pray that GOD may turn their Hearts; which is all that these Precepts require.

I proved to you in the Beginning, Gentlemen, that no supernatural Revelation of GOD’s Will, can possibly be contradictory or repugnant to Reason, which is the natural Revelation of his Will. I laid it down, as a Ground-Work, that GOD intended our Happiness in our Creation. I have shewn that Government and Political Society are absolutely essential to human Happiness; that the Preservation of Government is equally essential; that Force is necessary to that Preservation, and consequently, that War was allowable under the Law of Nature. And, I think, it is so apparent, from what has been said, that the Scripture cannot be justly impeached with Altering the Law of Nature in this Point; or of having taken away Man’s natural Right to seek that Happiness which GOD originally design’d him, by forbidding Christians to defend their Lives and Properties when they are unjustly invaded; that no intelligent Man, who examines it with an impartial, unprejudiced Mind, can have the least Doubt about it.

If the Right to use Force is not connected with and inseparable from Government, and included in the very Idea of it, I should be glad to know, how the lawful Commands or Mandates of the civil Magistrate can possibly be executed in Case of Disobedience? We see that these very People who assert the Unlawfulness of all Manner of Defence, willingly serve in the Legislature, consent to the Enacting Sanguinary and other Penal Laws, act as Sheriffs, serve upon Juries, sit in Courts of Judicature, and there try and condemn Men to Death. Is it not Amazing, that any Men should take it into their Heads that it is lawful for one Christian forceibly to put another to Death, after his Hands are tied behind him, and yet think it unlawful to bind him by Force, or even to kill him, in his unlawful Resistance? Suppose a Banditti of an Hundred stout, resolute Fellows should assemble together, commit Edition: current; Page: [1019] Murthers, Rapes, Robberies, destroy and lay waste all before them; what stead do you think the Constables and their Staves would stand you in, in order to subdue so many associated Villains; and more especially, if it be not lawful even for the Constables to make any Use of their Staves in Case of Resistance. If it be said, that a Constable, being an Officer of the Law, may be allowed to make Use of his Staff in Case of Necessity, seeing the Law has put it into his Hands; I ask why he may not make Use of a Gun, or a Sword in the like Necessity, put into his Hands by the same Authority. If it be answered, that a Gun or a Sword may kill: I reply, so may a Constable’s Staff. And if Constables, or other Officers of the Law, may make Use of Guns and Swords, in Cases of Necessity, I would willingly be informed, why all other Men have not the same Liberty under the like Necessity. In a Word, Gentlemen, to admit the Usefulness of civil Government to Mankind; and yet to advance the Position, that Force and all Manner of Self-Defence is unlawful, is a System full of Inconsistencies, and big with Absurdities and Nonsense.

Perhaps some may think it strange, that I, who have been educated amongst, and have always profess’d myself to be of the Society of the People called Quakers, should, in this publick Manner, declare myself so opposite to their Sentiments, in the Point of Defence. I would have such to believe, that the Love of my Country, the Love of Mankind in general, but above all, the Love of Truth, is of greater Concernment to me, than what is called Uniformity, or the being so attached to any particular Party in Religion, as to espouse, or seem to espouse, any of the Errors of it. That of the Unlawfulness of Self-Defence to Christians, is, to me, a most capital Error; not only dangerous to Society in general, as I have already said; and inconsistent with the very Nature of civil Communities; but, more particularly, of extream Danger to ourselves, at this critical Conjuncture. His Majesty is already engaged in a just and necessary War with Spain: And a War with France is generally look’d upon as unavoidable. The Province of Pennsylvania, and these Counties, are in the very Centre of his Majesty’s Colonies in America. The French are settled within a few Days March of our Frontiers to the North-West of us: The Ocean bounds us to the Eastward, and will admit of the Landing of any Number of Men, almost every where. In Case then of War with France, so much to be apprehended; how dismal is our Situation! seeing we are so much exposed on each Side, and of all his Majesty’s Colonies in America, are the only ones that are without Troops, without Arms, and without Ammunition: And all this owing to an Opposition in our several Assemblies, made by People whose religious Persuasion leads them to Edition: current; Page: [1020] condemn the Use of Arms in general. Military Provisions can only be made by the Legislature. Our Governor, from a Zeal to his Majesty’s Service, and the Security of such of his Majesty’s Subjects as he is by the Royal Authority appointed to protect and govern, has frequently, in vain, warmly recommended this Thing to the Assemblies of both Governments; and has been expressly answered by one of them, “that all Defence was, according to the religious Persuasion of the Majority of their House, unlawful.” And here I profess myself at a very great Loss, in what Manner to justify, or even excuse, the Conduct of my Brethren. The being really principled against the Lawfulness of Self-Defence, is, in itself innocent, as proceeding from an ill-informed Judgment, and only shews the Unfitness of those who are so principled to be imployed in Legislation. But when such Persons, by Plotting and Management, procure themselves to be chosen into the Legislature, at a critical Time, meerly to keep out and tie up the Hands of others, whose religious Principles leave them at Liberty to provide for the Defence of their Country, in Case of a foreign Invasion; it amounts to a negative Persecution, and becomes highly blameable. The General Assembly of these Counties, at the pressing Instance of out Honourable Governor, hath, indeed, very lately pass’d a Militia-Law, in spight of the Opposition made, by those who affirm all War to be unlawful, who happened to be the Minority. This is so far right, as it is Doing all in our Power; but, in Truth, can be of very little Security to us, so long as the Province of Pennsylvania continues unprovided of all Means of Defence; and it must ever continue so unprovided, so long as nine Tenths of the Members of Assembly are such as are persuaded Defence is unlawful. I therefore thought it, Gentlemen, high Time to examine and expose a Doctrine so absurd in itself, and so ruinous in its Consequences. It has been with this View that I have taken up so much of your Time. How well I have succeeded in it, I leave others to judge.

New-Castle County, ss.

May it please your Honours,

The Grand-Inquest for the Body of this County return You their Thanks for the Charge deliver’d to them from the Bench. And as the same is intended for the Benefit of Society, we desire Your Honours will order it to be printed, for the Use of the Publick.

THOMAS NOXON, Foreman.

Edition: current; Page: [1021]

37: “Remarks on the Maryland Government and Constitution,” American Magazine (1741)

In 1741, Andrew Bradford, a printer, and John Webbe, a Pennsylvania lawyer and political writer, published the American Magazine. It was the first magazine to appear in the American colonies, beating Benjamin Franklin’s rival publication to print by three days. Webbe intended the magazine to be, as the subtitle said, “a Monthly Review of the Political State of the British Colonies,” and in its brief run it printed the proceedings of several of the colonial assemblies, essays on paper money and land speculation, a report on the war with Spain, a warning about the threat of Catholicism, and an account of Native American religion.

The first and second issues of the American Magazine (January and February 1741) contained a long essay, “Remarks on the Maryland Government and Constitution,” which is one of the best statements of the argument that there was no social basis in the American colonies for quasi-aristocratic upper houses. Possibly written by Webbe, it sided with the lower house of the Maryland assembly in its battle with the governor and his supporters in the upper house over the powers of the Proprietor. Drawing on an impressive range of writers—Locke, Harrington, and Machiavelli, among others—the essay contended that the central defect of the Maryland constitution was that the upper house served at the “Pleasure” of the governor and thus “can never stand equally between the Governor & the People; but on the contrary must in the Nature of Things, always stand with the Governor, Edition: current; Page: [1022] whenever his Interest is against the People’s.” The essay also contended that the governor’s power to appoint all officials (including judges) gave him, and by extension the proprietor, “the whole Legislative as well as the whole Executive Authority, and consequently his Government is of a pure despotic Kind.” Although the essayist was willing to concede the legitimacy of the English House of Lords, he maintained that the unelected upper houses in the American colonies violated the Lockean doctrine of popular sovereignty and would in time lead to a hereditary aristocracy extracting “Fees, Perquisites, Rents, and Revenues” from the people. He also defended Pennsylvania’s constitution from critics like James Logan, who thought it defective because, lacking an upper house, it did not conform to the mixed constitution of King, Lords, and Commons, which Britons in the eighteenth century thought was a perfect blend of the three classical types of government—monarchy, aristocracy, and democracy. In doing so, the essayist challenged the prevailing view that hereditary upper houses had a classical pedigree. Rather, he argued, “The Aristocracy which the Ancients speak so worthily of, was a Senate or Council of the Wiser or Better Sort elected by the People.”

The second part of the “Remarks” ended with the promise that the discussion would be continued, but in the March issue the only essay on the controversy in Maryland was a vindication of the conduct of the colony’s upper house. Webbe’s magazine ceased publication after this issue. (C.B.Y.)

Edition: current; Page: [1023]

Remarks on the Maryland Government.

{Part 1}

There were several Points started, in the preceding Controversy, by their Honours of the Upper House, which merit a particular Consideration. The first, we shall take Notice of, is where They assert that their House is founded on the same Principles, as the King’s Councils established in all the Crown-Colonies; and that, therefore, no Fault could be found with the one, but what would be applicable to the others. Now it was admitted, that the Legislators, who compose the Upper House of Maryland, are nominated by the Lord Proprietor, who has also the Power of annihilating any of them, and creating others at his Pleasure; nor was it denied, but that They hold the Places of the greatest Profit in the Government at his Lordship’s good Will. A House of Legislators so created can never stand equally between the Governor & the People; but on the contrary must in the Nature of Things, always stand with the Governor, whenever his Interest is against the People’s.

The Members of the Council in his Majesty’s Colonies are nominated by the King; and tho’ they may be suspended by a Governor, yet it must be with just Cause:* Neither can he arbitrarily remove them from other Posts in the Government, if they hold any such. He is moreover, in many Cases, restrained from acting without their Advice. They, therefore, seem, in the Royal Intention, to be designed as a Check on his Administration; and for that Reason may naturally stand against any Attempts made by him against the Liberties or Properties of the People committed to his Care. Such a Council, Then, in the Nature of it’s Institution (the Perversion of it is out of the present Question) is as opposite to that of Maryland, as Dependency and Independency can possibly be.

It is true the King’s Council have a Negative on Bills in such Cases where the Governor, by the Royal Instructions, is not to pass any without their Advice. But have They, therefore, a distinct Legislative Capacity from the Edition: current; Page: [1024] Governor? Would it not be more properly said, that He with Them are jointly intrusted with the King’s Negative Voice? If the Council in any of the Crown Colonies are Legislators to any other Purpose, it may be presumed They are so by Virtue of some Act of Assembly: But if otherwise, then it must be admitted, that so far They resemble the Upper House of Maryland.

Their Honours of that House, supposing their Lord Proprietor to be in Regard to his Province, what his Majesty is in Respect to any Crown-Colony; from thence infer, that, as the King’s Council are removeable at the King’s Pleasure, and the Council of Maryland being removeable at his Lordship’s, the Constitution of each must be therefore alike. The Defect of this Argument does not lie in the Consequence, but in the Faultiness of the Comparison contained in the Premises, which, as we suppose, gave Occasion to the Mistake: For if his Lordship had been considered as the King’s Deputy, as he is not less so for being vested with an hereditary Magistracy, whatever a courtly Complaisance may suggest to the Contrary; and had then been compared to a Governor under his Majesty in any of his Colonies: It would have been easy to perceive the Difference between the Constitution of a Council dependent on the King, but independent on the Governor; and of a Council entirely at a Governor’s Devotion: The one being evidently instituted for a public Good, the other to support a private Interest; for, as it was strongly urged by the Gentlemen of the Lower House, there is a wide Difference between the Appointment of the King, who can have no View but what concerns the general Welfare of his People, and That of a Proprietary or Governor, whose private Interest frequently clashes with that of the Community. It is certain that no Society is well constituted, except it be out of the Power, as well as against the Interest of any Member to hurt it: For tho’ the promoting the Felicity of the People be the chief Glory and Advantage of unlimitted Monarchs; yet how rarely do they pursue their real Interest, or deny themselves the Gratification of an insatiable Avarice, and other boundless Passions, which are observed to be generally more violent in them than in the Rest of their Species.

Their Honours of the Upper House of Maryland seem to condemn the Form of Government in Pennsylvania, Because the Council there has not like them, a legislative Capacity. But on Examination it will appear, that the Constitution of the former has not, in the Point objected, any Advantage over the latter: For, as the Members of the Council of Pennsylvania are nominated by the Governor, he might therefore, were he so minded, make use of them, as the Governor of Maryland does of his Council, to give Edition: current; Page: [1025] the Negative to Bills; or under their Names manage any Controversy that might arise between him and the Assembly. But as all this may be done as effectually in his own Name, and by their Assistance, tho’ they do not stile themselves a Branch of the Legislative; They must therefore answer all the Ends, that can be justly obtained by the Council of Maryland, tho’ acting in the Upper House under the Title of Legislators. Yet that Title is disputed by the Representatives, who, in the printed Proceedings of the Sessions we are now in P. 336. insisting on their Privileges as being duly elected, and convened according to the express Terms of the Royal Charter, and the Laws of the Country, doubt, that their Honours of the Upper House cannot show the like Voucher’s for taking a Share in the Legislature. If no such Vouchers can be produced, the Council of Pennsylvania has clearly the Advantage over that of Maryland, who have grasped into their Hands a Power, which the eternal Rules of Justice forbid them even to lay a Finger upon; whereas the other is not chargeable with a like Usurpation. Tho’ an Innovation of the Kind should not be attended with any present evil Effects, yet it is a Precedent of such a Nature, as may prove of dangerous Consequence to Posterity: For by admitting the Upper House to be a Branch of the Legislature, a Power is thereby admitted in the Governor, who is a Subject, to appoint Legislators over the People, his Fellow Subjects, without their Consent.* Why he may not do so in other Instances as well as this will be difficult to show a Reason. Edition: current; Page: [1026] The Capacity of this House to act as a legislative Body, being, as before noted, called in Question by the Lower House; we therefore presumed that every Body was left at Liberty to examine into it.

But, waving any farther Inquiry, for the present, into the Legality of such a distinct legislative Power, as assumed in Maryland; it will be more generally useful to consider, whether the Circumstances of his Majesty’s Subjects in America require the Establishment of such a Power at all.

The common Argument urged for it is grounded on a pretended Necessity of reducing the Forms of Governments in the Plantations to the Model of the Mother-Country. But tho’ there be the strongest Reasons, for supporting a House of Peers in Great-Britain, yet if there appear no such Reasons, nor any Reasons, for erecting, in Imitation of it, Upper Houses in the Colonies; but that, without them, all the Substantial Ends of a British Government may be obtained; and that, with them, the Properties of the People will be dangerously affected: Then the Pretended Necessity of Conformity must fall to the Ground

Notwithstanding the History of the Origin of the English Constitution is dark and defective, yet it may be easily collected from the Facts and Circumstances handed down to us, that the three Estates of King, Lords and Commons took their Rise, not from any previous Contrivance, but from the Circumstances of the Saxons, in Regard to one another, when they first entered Britain. These Foreigners, for so they were in Respect to the Time we are speaking of, having invaded and subdued the ancient Inhabitants, divided the Lands of the conquered Kingdom among themselves to each Man a Share according to his Merit and Post. It is highly probable that their civil Government was derived from the Order, Discipline and, Subordination observed in the Army. On that Supposition the General became King or the first Estate, the Officers Lords, or the second Estate, and the common Soldiers in a collective Body made up the Third; but afterwards growing numerouss and being dispersed all over the Kingdom, they were obliged to send Representatives to the General Council or Parliament, who, sitting a part from the Lords are now called the House of Commons. Thus three different Interests (throwing the conquered out of the Question) being equitably created, in Regard to the Conquerors; & the two first Orders, viz. that of the General, and of the Officers, becoming hereditary, the English Constitution was established.

Edition: current; Page: [1027]

The Probability of these Conjectures will be farther strengthned, if it be considered that the same Form of Government was introduced by the Goths, (under which general Name the Saxons are comprehended) in all the other Parts of Europe, where they made Conquests; but at this Day England only maintains the Gothic Constitution; the first Estate having every where else swallowed up the two others. Were it necessary many Instances might be produced of independent Armies from other Nations, who, after Conquest, formed themselves, or rather naturally fell upon the Gothic Model of civil Government. The Norman Conquest (if it was a Conquest) altered nothing in the Frame of the ancient Saxon Constitution; the Government of the Normans being pitched on a like Model, for they were originally Saxons.

Now if there be any Set of Men in any of the Colonies, who have a just Pretence to the same Superiority over their Fellow Subjects, as the Saxon Officers had over their Soldiers; Then such Men should be distinguished with Superior Privileges above the Rest, and erected into an independent legislative Order. But if there be no such Pretences, then there does not appear the least Necessity for distinguishing such Men with distinct Privileges.

Let us consider this Matter in another Light. Interests originally derived from a Wrong, may by Prescription, as well as by express Compact, be turned into a Right. This Maxim is universally acknowledged; were it otherwise Society would be open to continual Disturbances. Therefore, tho’ the Manner how the Nobility originally became an independent Branch of the Legislature of Great-Britain cannot be clearly accounted for; yet inasmuch as they are acknowledged to be so by Magna Charta, and other subsequent Acts of Parliament, which include the Consent of the Whole; They have from thence as ancient and strong a Right to their Honours and Privileges, as any private Man can show for his Estate. The Rights of the L. Spiritual in Parliament commenced with the Conversion of the Saxons to Christianity; and have also the Law of the Land for their Support.

Many Dissenters have complained of the Hardships of Tithes, as being thereby obliged to give the Tenth of the Product of their Labour to the Clergy. This is not a fair State of the Case. No human Law can equitably oblige any Man to give away his Labour to another. Therefore personal Tithes, quae debentur ex opere personali, ut Artificio, Scientia, Militia, Negotiatione, &c. which arose purely from personal Labour, and was the tenth Part of the Profits made by Handycraftsmen, Scholars, Soldiers, Merchants, and Edition: current; Page: [1028] Tradesmen in their several Professions, and so declared by the judges in the Reign of James I, are now but tenderly insisted upon in some few inconsiderable Instances. But tho’ the Father cannot by any Compact of his, no, not tho’ it receives the Sanction of publick Consent, equitably bind the Son being no Party to the Contract, to labour for another; yet, in Regard that every Man may dispose of his Property and Acquisition as he pleases, where there is no positive Law to restrain him; the Ancestor may leave his Land to his Heir, under a Provisoe that he pays Tithes out of it to the Church. If the Heir dislikes the Condition, he is not bound to receive the Land; yet if he accepts of it, and in Consequence thereof gives (as every Man in England that holds Land there must give, by Virtue of that public Donation made, and often confirmed, by their Ancestors in Parliament) the tenth Part of the Produce, which, considering the Labour mixt with it, may amount to the fifth Part of the yearly Value of the Land, to the Clergy; he nevertheless gives them Nothing, that he has the least Pretence of Right to.

No Man can be injured in his Property, but by withholding from him what he may call his own; and as no Person can show the least Colour of Claim to any Part of the Lands or Revenues belonging to the Church of England; She therefore enjoys them without Prejudice to any Man’s Property, and her Title to them must be indisputable.

Now forasmuch as in every well regulated Society, the Interests of all Parties are to be sacredly maintained; it was not only highly reasonable, but absolutely necessary, that the Lords Spiritual and Temporal should make a distinct Estate in Parliament; in order to preserve their Privileges, Honours and Estates from the Incroachments of the Prince on one Side, or of the Commons on the other, which, as History informs us, have been frequently attempted. It was on such equitable Considerations as these, as may be reasonably imagined, That, at the End of the Reign of King James II. who having the Supreme executive Power, neglected and abandoned that Charge;* whereby the Laws could no longer be put in Execution, and all were reduced to Anarchy and Confusion, so that the Government Edition: current; Page: [1029] was effectually dissolved: Yet the People, tho’ then in a State of Nature, and consequently at Liberty to provide for themselves* by erecting a new Legislative differing from the other, by the Change of Persons, or Form, or both, as they should find most for their Safety and Good, did, nevertheless, establish the Government on it’s old Basis; and the Nobility and Clergy retained their ancient legislative Power; for without It their Interests could not be secured and preserved; and being not preserved, the Government had been unjust, whose true End is to protect the various Rights of every Member of the Society, which, in natural Equity were lost to none on the Dissolution of the Government before mentioned, but only a security for them was lost till another was settled. Add to this, that Alterations, in the ancient Form of an independent Government, however reasonable in themselves, abstracted from Circumstances, are more often introductory to greater Evils, than what were designed to be prevented by them.

The whole of the Reasoning attempted in Relation to that AUGUST BODY, the Peerage of England is in Order to prove, That where any Order like them have acquired an equitable and distinct Interest from the Rest of the People; it is necessary, that, for the Protection of it, they should have a legislative Power independent of the People: Which being admitted, the Necessity of bestowing on any Body of Men in the Plantations a legislative Power, not deriveable from their Fellow-Subjects, cannot be maintained, until that Body shall have equitably acquired a distinct Interest from their Fellow-Subjects. Whether the King may not by Virtue of his Prerogative, create an independent Branch of Legislature, different from his own, in the Plantations, is a Point of too high a Nature for us to meddle with: Tho’, as may be seen in the Reports, there is nothing more familiar with the Gentlemen of the Robe at the Bar of Westminster, than to argue upon the Bounds of the Prerogative; and if they have a Right to do so there, and publish it when they have done, any other Subject may exercise the same Right any where else. The Law makes no Distinction; neither, because of the Difference of Capacities, does it make any Difference in the Right. Under a Monarchy limited by the Law, every one may freely inquire into those Limits, because, otherwise, he cannot understand the Law; the Ignorance of which will not excuse the Transgression of it. However, as the PREROGATIVE Edition: current; Page: [1030] is a Power to do GOOD, without a Rule, in Cases where the Law is silent; we may be certain, That it will never countenance such a distinct Branch of Legislature, as we have been speaking of; were it made manifest, that it would have a natural Tendency to introduce petty Tyrannies, and Oligarchies in the Colonies; and thereby render them less serviceable to Great-Britain; whose Interest it highly is, as we hope will appear demonstratively proved in the Sequel of this Discourse, to guard them from Oppressions of all Kinds; which we think is impossible to be done otherwise, on Account of their vast Distance from the Sovereign Seat of Empire, than by granting to them in Parliament, a perfect internal Liberty, as to the Choice of their own Laws, and in all other Matters that are purely provincial; under a Salvo1 of their inviolable Allegiance, and a punctual Complyance with the Acts of Navigation. But the mentioning the former Part was unnecessary; for the Colonies are yet but Babes that cannot subsist but on the Breasts, and thro’ the Protection of their Mother Country. An Attempt to wean themselves is not therefore to be suspected, without looking far into Futurity; which is a Consideration too remote to deserve a present Attention. Yet Great Britain seems to be for ever secure in that Respect, by the Acts of Navigation, which is a Policy that was unknown to the ancient Romans. By Means of those Acts the Colonies, like Rivulets, must always discharge themselves into the Great British Stream, which will swell and rise in the same Proportion as those Rivulets do.

We shall resume the Point, which the preceding Reflections lead us from, and consider what has been asserted by some; That the Government of King, Lords, and Commons is an equal Mixture of Monarchy, Aristocracy, and Democracy; and that, as the Ancients have rightly taught, all civil Institutions must be imperfect, where any of those three Orders are wanting; therefore a Constitution in the Colonies where there is not an Upper-House, in Imitation of that of the Lords in Great-Britain must be defective, because it is without an Aristocracy. Much to the same Purpose, the learned and Hon. James Logan Esq; in a Charge delivered by him some Years ago, to a Grand-Jury at Philadelphia, seems to express himself by the following Words. The general Distinction of Government has been into Monarchy, where one Person solely Rules; Aristocracy, where a Number of the Best have the Power, (for so the Word implies) and Democracy, where the Whole is Edition: current; Page: [1031] lodged in the Voice of the People. Each of these singly have been useful, yet attended with Inconveniencies, degenerating severally into Courses of Oppression, which have also been distinguished by their respective Names, as the vicious Issues of more laudable Institutions. But it is the singular Happiness of Great Britain, celebrated for it’s Constitution, in this Part, above most if not all others in the Universe; to be compounded of the best Parts of all these three. For the King, as Monarch, is supreme, yet limited by the Laws; the Power of which is vested in him jointly with the Lords, the whole Nobility of the Kingdom; and with the Commons, whose Representatives for every Parliament, are elected by the Votes of the Freeholders through the Nation. And Public Justice is administred by known fixed Laws, which cannot be infringed or altered by the Will of any Man, or by any other Power than the whole Legislature, which as has been observed is TRULY compounded of all those three Kinds of Government, Monarchy, Aristocracy and Democracy; all happily united, in their best Parts into One. The same Method of Government also obtains, not only in Britain, but in all it’s Dominions abroad where regular Governments are established: This one Colony of Pennsylvania, and the adjacent Counties excepted. And this only thro’ the Perversity of some few Persons, on a certain Occasion, much contrary to the Intention or Inclinations of the wiser Founder. Which I here mention on my own Knowledge; lest this Defect, which is to be found among us only, and is a Kind of Blemish and Exception to the Uniformity of the British Government, throughout it’s Dominions, should be charged to the Memory of that great Man, whose Judgment absolutely condemned it. If this Passage only intimates that the Constitution of Pennsylvania is defective, because It’s Aristocracy, for such it will be manifest it has in some Measure, is not vested with all the Powers, which the Ancients would bestow on it; the Objection seems perfectly just. But if the learned Gentleman suggests as his Words, without a farther Explanation, must lead every Reader to imagine; That such a Defect may be cured by creating a Power in Pennsylvania resembling that of the Peerage in Great Britain: We must beg Leave to dissent, but with the greatest Deference, from that Opinion. The Authority from which we appeal is great: Therefore a contrary Judgment cannot stand against it, that is only accompanied with Assertions, and is not supported with Reasons. What we shall principally insist upon is, that the Idea of an Aristocracy, as the Ancients conceived it in a mixed Government, is not to be found in the Constitution of the House of Peers. The Term, in the Use of it to express Edition: current; Page: [1032] a single Branch of Power, has been already defined. But that Power, in it’s Relation to the two other Orders of Monarchy and Democracy, which is the Thing we are now to consider, cannot be so clearly understood by any Definition, as by a short Draft of those Forms of Government, in which It was most advantageously placed.

The Aristocracy which the Ancients speak so worthily of, was a Senate or Council of the Wiser or Better Sort elected by the People. They assisted the Executive Powers with their Advice in all Cases of Importance, had the Care of the Finances, or public Money, watched continually over the State, and prepared Laws for the Peoples Assent, whom they could assemble when it was necessary.

The Senate of Athens consisted of four Hundred annually chosen, who divided themselves into eight Parts; so that fifty sat one eighth Part of the Year, who were succeeded by the other Divisions. They could make Laws, but of no longer Duration than a Year, unless confirm’d by the People; and for that End they were published a convenient Time before their Meeting, that they might have an Opportunity of considering their Expediency, and debating thereon with one another. They first assembled in a Body, but afterwards by Representatives, which did not consist of a less Number than four, some say five, Thousand. Their only Business was to give the Affirmative or Negative to any Matter or Law proposed to them by the Senate. But the Athenians were brought off from this wholsome Institution, and unhappily persuaded by the Eloquence of their Orators, to pass Propositions made to them from the Rostrum or Pulpit immediately into Laws, without any Deliberation; when their Imaginations were inflamed, and their Judgments perverted thro’ the Force and Deceitfulness of Rhetoric, whose Rules teach an Application to the Passions, & not to the Reason of Mankind, which belongs to another Science. Thus the Senate gradually became useless; and the People, being without a regular Council, fell into Confusion, and the Glory of Athens kist the Dust. Yet it should always be remembred, that this little Republic, in a lesser Period of Time than one hundred and fifty Years, produced more eminent and illustrious Men for Arms, Arts, and Sciences, (tho’ there was no Hereditary Order amongst them with superior Privileges above the Rest of the People) than all the unlimited Monarchies, taking them together, ever did, by the Accounts transmitted of ’em, from the Beginning of the World to this Day.

Edition: current; Page: [1033]

The Senate of Sparta consisted of Thirty, elected by the People, for Life. But none were capable of being chosen that were under Sixty Years of Age. The Elections must therefore have been frequent. The People moreover annually chose out of their Body, five Magistrates called Ephors, who had Power to try and condemn any of the Senate who were guilty of Male-Administration. Even the two Kings who were hereditary, yet had no greater Privilege from thence than single Votes in the Senate, were equally subject to that popular Tribunal. This Republic subsisted eight hundred Years without the least Faction or inward Disorder, except that which gave Occasion to the Institution of the Ephors, to watch and restrain the Ambition of the Senate.

Lycurgus who instituted this Commonwealth no doubt imagined, that Persons illustrious for their private Virtues, as the Spartan Senators must have been, otherwise the People would not have elected them; might be safely trusted with Power, when by the Course of Nature, they could expect to enjoy it but a few Years. Yet They most scandalously attempted to enlarge it; For, whereas like the Athenian Senate, they were intrusted to advise and deliberate on such Laws, as should seem most expedient, and then propose them to the People for their Assent; They would have ingrossed the whole Legislative into their Hands, and, not contented with the Trust reposed in them to draw up the Laws would have also Enacted them by their own Authority. But the People prevented the intended Usurpation; and, by the Help of their Ephors, brought Matters back, and settled them on the Foundation, that the wise Lycurgus, (who, as the Learned affirm, took his imperfect Scheme from the perfect Model, if he had lived to carry it into full Execution, of the much wiser Moses; the Spartans, by the Testimony of Josephus, being of the Kindred of the Jews) intended they should always rest upon.

To make a useful Application of those ancient Aristocracies, and in order to give a fuller Answer to the Reasons offered in Support of the Objection made, in the Charge to the Grand-Jury before mentioned, against the Form of Government in Pennsylvania; we shall now step back into Maryland, and take another View of that Constitution. (We hope it will not be deemed Treason, in any of his Majesty’s Subjects, to look at that Constitution.) Any new Discoveries, which, on such a second View, we may happen to make, will, if they seem worthy of public Notice, be also communicated to the Public in our next.

Edition: current; Page: [1034]

{Part 2}

When we broke off the Discourse that bears this Title, we initiated a Design to return immediately into Maryland from Sparta, where we then were. But our transition from thence has not happened to be so direct, as we intended. Moreover while we were preparing to take leave of our old Greece, our stay there was longer than expected, occasioned by some Reflections and Observations to the following Effect.

The Ambition and Corruption of the Spartan Senate, composed of such ancient and venerable Persons, bred up from their Infancy in a Love of Liberty, and among a People distinguished for an heroic and disinterested Virtue, above the rest of Greece; the Weakness, we say, which the most eminent People of that Age, discovered when trusted with Power, seems a most undeniable and striking Evidence that it is a Temptation too great for any Man, or any particular set of Men, to resist, who are not accountable for their Conduct to a public Tribunal. For the sake of this Remark, we have enlarged upon the Fact, which no Authors, as we know of, have considered in the List, that it has been placed.

In the foregoing Description of the Spartan and Athenian Republics, the Particulars whereof we have collected from the best Authors, may be observed the WISDOM of the People in their Elective Senate, or Council of Wisemen and Elders, consulting, which is an Aristocracy; the INTEREST of the People in their collective, or representative Body resolving and enacting, which agrees with Democracy. To which if we add one or more supreme annual Magistrates, as the two Consuls at Rome, executing, to answer the End of Monarchy; we have, in Miniature, the Picture of that Kind of mixt Government, which, according to the Doctrine of the Ancients, is, and, as They insist the only Sort that is, PERFECT.

But in the Picture above given, there is nothing to be observed resembling the Constitution of the House of Peers, who are not therefore an Aristocracy, in the Eye of Antiquity. The Commons come up much nearer to the true Notion of it, their Authority being derived from a popular Root. Yet the Lords are personally as much interested in the Welfare and Glory of the Nation as the Commons. Therefore it ought not to be presumed, that any Thing proposed for promoting those Ends by the former, will ever be opposed by the latter; provided their distinct but just Privileges be Edition: current; Page: [1035] preserved. Here again we are obliged to recur to the Reason offered before, and to the only true Reason, in our humble Apprehension, for we cannot possibly conceive any other (we mean on Mr. Locke’s Principles) why the Lords Spiritual and Temporal, whose Number before the Union made up but about 170,* and who only represent themselves, should have a Negative on the Determinations of the Commons, who represent ten Millions. This Reason, which has its Foundation in natural Justice, and must certainly have been prevalent at the Revolution, clearly points out the Rules of Equity, which governed the great Patriots of that Time in agreeing (when the People, as before noted out of Mr. Locke, were under no controul, and, all positive Laws being silent or dissolved, at Liberty to chuse the Form of Government they liked best) that the Lords for the Preservation of their distinct Rights should always have a Check on the Representatives. Yet where the Privilege of the Peerage is not concerned, as in the Case of Money-Bills, they are not allowed, so speaks the Book before us, by the Commons, in whose House such Bills must always begin, to meddle, or make any Alteration.

As an Engineer discovers the Height of Art and Genius, when, without pulling down valuable Buildings, he varies his Rules for the Accommodation of a Town that he would secure, and raises about it Fortifications that are impregnable, tho’ something irregular: So the Wisdom of the English Constitution does not consist, as we most humbly conceive, in the Creation of various distinct Interests, there being Nothing in ancient Prudence to countenance it; but, being created, in the admirable Laws that are made for ballancing them, and to prevent them from clashing with, or swallowing up one another. But would not that Engineer be justly blameable, who should neglect the exact Rules of his Science, when he might pursue them without any one’s Prejudice, to imitate an irregular Fortification, whose Deviations from Mathematical Principles, were only owing to the Nature of the Ground, and did not, otherwise, proceed from Choice or Design in the Artist? We shall submit the Application to the Architects, and Advocates for Upper Houses in the Plantations. We cannot omit in this Place a Story related by Edition: current; Page: [1036] a celebrated Author,* whose Wisdom (tho’ of the most abstrusive Kind, yet, as managed by his Pen, appearing to be only plain and familiar Truths) has reached and instructed Worlds remote yet unknown to his. Because we would not spoil the Story we shall give it in the Author’s Words.

Some Hundred Years ago, when the Peers were so great that the Commons were looked upon as little better than their Dependants; a Bill was brought in for making some new Additions to the Power and Privileges of the Peerage. After it was read, one Mr. Drue, a Member of the House, stood up, and said he very much approved the Bill, and would give his Vote to have it pass; but however, for some Reasons best known to himself, he desired that a Clause might be inserted for excepting the Family of the Drues. The Oddness of the Proposition taught others to reflect a little; and the Bill was thrown out.

We incline to believe that the Plantations would as soon obtain Aristocracies, by establishing amongst them Lords Spiritual, as by filling Upper Houses with Lords Temporal only. Yet any Proposition in Favour of the first might not meet with a very easy Digestion; because the Revenues necessary to support their Dignity must be raised out of the immediate Labour of the People in the Colonies. The Divine Right to Tithes is fairly given up by Prideaux and the most learned and honest Part of the Clergy. Neither can the Tenths allowed to the Levites be any Precedent in this Case: For their Part of the promised Land, which they equally assisted in the Conquest of, being relinquished by them to be divided among the Rest of the Tribes, is allowed, by Commentators, to have been an Equivalent to the Tenths they received in Lieu of it. Those who have not Leisure to examine into Consequences may be under no Apprehensions of any Prejudice to their Properties from the Establishment of Upper-Houses, because the Members that compose them do not seem, as the Lords Spiritual, to require any immediate Revenues. Now tho’ upon any such Proposition it might be sufficient to urge, that a distinct Legislative Power, without a distinct Interest to protect, is, as has been before shown, evidently useless; and that a Body-Politic with a superfluous Branch of Legislature ingrafted on it, must look altogether as unnatural and deformed, as a human Body with a redundant Arm growing from it: Yet let such a distinct Power be once created, more especially if it be Edition: current; Page: [1037] under a Governor’s Directions, as it is in Maryland; and it will gradually and imperceptibly, or perhaps at one Stroke, if the Representatives or Trustees for the People should at any Time drop asleep, or thro’ frequent Changes or Dissolutions prove faithless, create to it self, for that is one principal End of its Creation, a distinct Interest, as in Fees, Perquisites, Rents and Revenues. But these cannot possibly be obtained in America, but out of the Labour of the People; for a Tract of unpeopled Land, tho’ of never so great an Extent, can yield none of them. Now the Fruits of the Labour of the People, is the Property of the People, and there can be no lawful Power in Society which has not a Tendency to secure it. But that which we have offered our Reasons against, under the Correction however, & so we would be always understood, of better Judgments, will if it be not most carefully watched, instead of preserving Property, by an innevitable Consequence prey upon it. Therefore the Establishment of such a distinct Legislative Power, not only seems useless but visibly dangerous.

In arguing against the Establishment of an independent legislative Power in the Plantations, we have considered it as meant by those who are Advocates for it, either to be hereditary like that of the Lords Temporal, or for Life resembling that of the Lords Spiritual. But if it was meant to be dependent on the Governor, as it is in Maryland, the Objections against it are much stronger. For where a Body of Legislators is independent of the Prince, (we make use of that Word in the Sense the Latins did of Princeps to signify the Chief in a Community) as well as of the People; They will act against the Prince if he touches their Privileges, and for the Defence of them must take Part with the People. Yet if he takes Care to indulge his Nobility, they will be as careful to gratify him, and both will join to oppress those beneath them. But if a Nobility assuming a distinct Legislative Power, should nevertheless be absolutely dependent on the Prince, it cannot be supposed that the People could ever receive, in any one single Instance, the smallest Benefit from such an Institution.

We shall now apply the Rules of ancient Prudence before laid down, which we would observe are not copied from any one particular Republic, to the Government of Maryland; and in Order thereto must remind the Reader, that the Aristocracy of the Ancients had a Share not only in the Legislative, but also in the Executive Part, in Respect of which they were a Council of State.

The first Order observable in the Constitution of Maryland is the Monarchical or Magistratical, placed wholly in the chief Governor; the Edition: current; Page: [1038] Aristocratical, as to the executive Part of it, in his Council; but, being under his Directions, that must be referred to him; and for the same Reason the Half of the Legislative Branch of the Aristocracy for preparing and proposing of Laws, tho’ nominally lodg’d in the Council, does also in Effect belong to the Governor. The Delegates have no Share in the executive Part of the Aristocracy, but they are the half of it’s Legislative Branch, and the other half of it, as before observed, is assumed by the Council in Trust for the Governor. If it be asked where is the Democracy, or supreme Power of the People as the Ancients called it, we answer that it is also in the Governor; for he has the enacting Voice, and dernier Result on the Bills prepared for his Assent by the Delegates of the People. In this Answer we follow the Opinion of Justinian, who says; The Princes Pleasure has the Force of Law,* since the People have by the Lex Regia,1 concerning his Power, made over to him all their own Empire and Authority. On this Passage the Author of the Treatise from which we have taken it remarks, That the Decrees of the Roman Senate that had Place allowed by Justinian in his Compilement of the Roman Laws, were not Laws, in that they were Decrees, or Propositions of the Senate, but in that they were allowed by the Prince to whom the People had given up their Right. The Difference between the Maryland Constitution, and the Roman Government under the Emperors seems to lie in this, That in the former the People have a Senate of their own Election, tho’ not always sitting, and no Laws can be binding on them, to which they have not given their Consent: Whereas in the other the Senate, exactly like the Common Council for the City of Philadelphia, chose one another, and were independent of the People, who had no Voice in the enacting of Laws. This Privilege of being bound by no Ordinances, but to which they have assented, is a distinguishing Characteristick of a free People. But if they are without a Power to compel the Execution, and punish the Neglect or wilful Misinterpretation of the Laws, their Privileges in being Partys to them amount to just Nothing. Now as the Governor of Maryland has the Nomination of the Chancellor, the Judges, Sheriffs &c. who are all removeable at his Pleasure, the Interpretation and Execution of the Laws as well of those made under Edition: current; Page: [1039] that Government, as of Magna Charta, and the whole Statute and Common Law, which the People of the Colonies claim, in Virtue of their Birthright, as English Subjects, rest intirely in him; For he may constitute the Courts of Judicature in such a Manner as to dispence Justice as he pleases, and savour or oppress such Persons as he thinks fit.

He who hath a Power to interpret any written or spoken Laws, is truly the Lawgiver to all Intents and Purposes, and not the Persons who first wrote spoke or enacted them;

therefore the Governor of Maryland having clearly such a Power, were he disposed to exert it, is really, tho’ not nominally, vested with the whole Legislative as well as the whole Executive Authority, and consequently his Government is of a pure despotic Kind, and the more so for retaining the Form while it discards the Substance of a British Constitution. We shall here apply the Sense of what was said by Mr. Trenchard, on another Occasion in his History of standing Armies.

If the Marylanders under the Constitution they live, enjoy their natural Rights and Privileges, it is barely because they have a virtuous Governor that will not attempt to invade them. Yet to pursue the Words of the same Author, it is a most miserable Thing to have no other Security for our Liberty than the Will of a Man, tho’ the justest Man living; for that is not a free Government where there is a good Prince (for even the most arbitrary Governments have sometimes had a Relaxation of their Miseries) but where it is so constituted that no one can be a Tyrant if he would. Cicero says that tho’ a Master does not tyrannize, yet it is a lamentable Consideration that it is in his Power so to do: And therefore such a Power is to be trusted with none, which if it does not find a Tyrant commonly makes one, and if not him to be sure a Successor.

Why the Governor of Maryland, being in Effect possessed of the whole Legislative Power in the Manner before set forth, should chuse to make an Appearance of sharing it with his Council, seems difficult to account for; Except the Intention of placing them in so advantageous a Situation, was to give them an Opportunity to watch and lay hold of all favourable Dispositions in the Representatives, of procuring to themselves Places of Profit, to be held nevertheless at the Will of the Governor; whereby their Influence over the People might be enlarged, and his Lordship’s Principality or Prerogative, as it is called in Maryland, more firmly supported.

Edition: current; Page: [1040]

Machiavel* is positive that he who would set up a Monarchy, or Principality, where the Equality is great, must select the most considerable and unquiet amongst them; give them Castles, and Lands, and Preferments, and any Thing that may oblige them to his Side; by which Means they shall not only maintain the Power of their Prince, but their own Insolence and Ambition; & the People be forced to submit to a Yoke, to which nothing else could compel them.

Whether Machiavel was consulted in the erecting of this same Upper House in Maryland, we cannot pretend to say: But if Credit is to be given to the continued Complaints made by the Delegates, tho’ frequently dissolved, who therefore must be presumed to speak the Sense of their Constituents; It has in it’s Effects, answered the Intention of Machiavel’s Scheme to a Tittle.

Yet the People might be able to defend their Liberties, if the Magistracy, who are intrusted with the Execution of the Law, were accountable for their Conduct to the Prescribers of it. That it should be so is perfectly agreeable to the Nature & immutable Relation of Things; for those, who have a lawful Right to give Commands, have necessarily a Right to see those Commands executed, and to punish the Neglect or Breach of Trust in those, that are charged with the Execution of them. Should it be otherwise, the Laws or written Commands given would be only a dead Letter, and the Right to give them only an empty Sound. Hence it is that the Legislative is superior to the Executive Power. This was freely, and in the fullest Manner, acknowledged by that learned Monarch, King James I. in his Speech to the Parliament in 1603, whose Words on that Occasion, which are here inserted, deserve not only to be ingraven in Letters of Gold, but on the Hearts of every Man.

I Do acknowledge that the special and greatest Point of Difference that is betwixt a rightful King and an usurping Tyrant, is in this: That whereas the proud and ambitious Tyrant doth think his Kingdom and People are only ordained for the Satisfaction of his Desires & unreasonable Appetites, The righteous and just King doth by the contrary acknowledge himself to be ordained for the procuring of the Wealth and Prosperity of his People; and that his great and principal worldly Felicity must consist in their Prosperity: If you be rich I cannot be poor; if you be happy, I cannot but be fortunate; and I protest your Welfare shall ever be my greatest Care and Contentment. And that I am a Servant it is most true; for as I Edition: current; Page: [1041] am Head and Governor of all the People in my Dominion who are my natural Subjects, considering them in distinct Ranks, so if we will take in the People as one Body, then as the Head is ordained for the Body, AND NOT THE BODY FOR THE HEAD, so must a righteous King know himself to be ordained for his People, and NOT HIS PEOPLE FOR HIM, Wherefore I will never be ashamed to confess it my principal Honour to be the GREAT SERVANT of the Commonwealth &c.

The first Law passed by the Romans, after they expelled Tyranny in the Persons of the Tarquins, was that which SECURED the Appeal to the People, and constituted them Judges of Life and Estate, over their Magistrates as well as over all others, who should attempt to introduce arbitrary Power, or subvert the Laws. Thus Livy. Latae deinde Leges,—Ante omnes de provocatione adversus Magistratus ad Populum, sacrandoque; cum bonis capite ejus, qui regni occupandi concilia inisset2 {gratae in volgus leges fuere}. Lib. 2. c. 8. Machiavel, the great Patron of the People, has remarked in their Favour, That, so far were they from abusing this Power, notwithstanding the continual Provocations and Oppressions of a lawless and tyrannical Senate; that they seldom banished any accused before them, and seldomer gave Sentence of Death; and that, in either Case, during the Space of four hundred Years, They never once pronounced one partial or corrupt Judgment.

For this and many other Reasons He positively concludes, That the Multitude is wiser, and more constant than a Prince. Dis. B. 1. c. 58. He also notes out of Cicero, whose Opinion he also adopts, That the People tho’ they are not so prone to find out Truth of themselves, as to follow Custom, or run into Error; yet if they be shewn Truth, they not only acknowledge and imbrace it very suddenly, but are the most constant and FAITHFUL Guardians and Conservators of it.

No Liberty ever subsisted but where the People, were vested with a regular Authority to judge and condemn great Offenders, whenever their Greatness placed them out of the Reach of the ordinary Course of Justice. This Right was exercised at Athens, Sparta, and Carthage as well as Edition: current; Page: [1042] at Rome: The same was always practised in England. The History of that Kingdom furnishes a great, perhaps a greater Number of Instances than any other, of Grand Criminals, pursued for their Crimes by the loud, the terrible and irresistible Cry of an injured Nation; a Nation that, with a more than Roman Spirit, has often hunted down the subtlest and fiercest Beasts of Prey, and brought to Justice the most exalted Oppressors by Impeachments and Bills of Attainder in Parliament. But the Person of the Prince, by the Law, is Sacred; unless (according to Mr. Locke) he will by actually puting himself into a State of War with his People, dissolve the Government, and leave them to that Defence, which belongs to every one in a State of Nature. And a Neighbour Kingdom [Ireland we presume is meant, which about the Time the Author wrote the Treatise vouched here, was in a Rebellion (if we may be allowed by some to say so, King James II. being at the Head of it) against King William, and the Parliament, and Kingdom of Great Britain] has showed the World an odd Example. In all other Cases the Sacredness of the Person exempts him from all Inconveniencies: Than which there cannot be a wiser Constitution. For the Harm he can do in his own Person [all under him being liable to be questioned in Parliament] is not likely to happen often, nor to extend it self far, not being able, by his single Strength, to subvert the Laws, nor oppress the Body of the People. Their Power, as conveyed to their Representatives in Parliament, was once doubted by no less a Judge of the English Constitution than the Earl of Shaftsbury* whether it was so extensive as Edition: current; Page: [1043] asserted by Mr. Locke. But that great Nobleman on the clearest Evidence came over to the Opinion of the latter.

Since the Revolution we read of no Impeachments brought against Judges, which seems to be owing to those two Statutes that rendred them independent of the Crown, as well in Regard of their Salaries as their Places. Before those Acts we find the Patriots in Parliament, actuated by a noble Indignation, inveighing against the Corruption of Judges with the Thunder and Eloquence of Demosthenes and Cicero. With what Warmth did Sir Henry Marten express himself in the Debates of 1603 against the Judges of that Time who had eluded the Effects of Habeas Corpus’s?

Let it not be forgotten says he, how our Ancestors and Predecessors carried themselves in Parliament, when upon lighter Provocations, less would not serve their Turns, but new severe Commissions to hear and determine Offences against their Liberties; public Ecclesiastical Curses, & Excommunications against the Authors and Actors of such Violations, Accusations, Condemnations, Executions, Banishment; if a Worm, being trod upon, could speak, a Worm would say, Tread on me no more.

The Liberality of this worthy Knight deserves to be taken Notice of, in Regard to the bountiful Provision he was desirous to make for bad Judges in this World and the next.

When in the Year 1680 Complaint was made in Parliament against Scroggs Chief Justice for having illegally discharged a Grand Jury to prevent them from making a Presentment, several excellent Speeches were made on that Occasion. Some Extracts from them we hope may not prove disagreeable to the Reader. One Member addressing himself as usual to the Speaker says

Sir, I think we are come to the old Times again, when the Judges pretended they had a Rule of Government, as well as a Rule of Law; & they have acted accordingly. If they never read Magna Charta, I think they are not fit to be Judges; If they have read Magna Charta, & do thus so contrary, they deserve severe Chastisement—As Faults committed by Judges are of a more dangerous Consequence than others to the Public, so there do not want Precedents of severer Chastisements for them than others.

Another Member proceeded in the following Manner:

As our Ships, Ports, and Castles are for the securing us from the Danger of our Enemies from abroad, so our Laws from our Enemies at home; and if committed to such Persons as will turn their Strength upon us Edition: current; Page: [1044] are equally dangerous—In former Times several Judges have been impeached, and hang’d too for less Crimes than these; and the Reason was because they had broken the King’s Oath as well as their own: And if what hath been said be fully proved, they shall not want my Vote to inflict on them the same Chastisement. The Truth is, Sir, I know not how the ill Consequences we justly fear from Judges can be prevented, as long as they are made durante bene placito, (during pleasure) and have such Dependencies as they have,

But Col. Titus offered an Excuse for them and said,

That whereas some have spoken ill of these Judges, I desire to speak well of them in one Thing; I am confident, they have herein shew’d themselves grateful to their Benefactors, for I believe some of them were preferred to their Places on Purpose because they should do what they have done.

On another Occasion it was urged

That if the Judges make new Laws by an ill Construction, or by an ill Execution of old ones, Parliaments would soon be found useless, and the Liberty of the People an Inconvenience to the Government.

This House of Commons having voted Lord Chief Justice Scrogg’s Warrant to the Messengers of the Press, to seize unlicensed Pamphlets and News-Papers to be arbitrary and illegal; Sir Francis Winnington, a famous Lawyer, on that Occasion stood up and opened (says the Authork to whom we are beholden for these Extracts) as Cicero would have done in the same Place, if he had been there to speak without Fear the Dictates of his Conscience:—

Mr. Speaker, The State of this poor Nation is to be deplored, that in almost all Ages the Judges who ought to be Preservers of the Laws, have endeavoured to destroy them, and that to please a Court Party: They have, by Treachery, attempted to break the Bonds asunder of Magna Charta, the great Treasury of our Peace—The two great and undoubted Privileges of the People have been lately invaded by the Judges that now sit in Westminster Hall. They have espoused Proclamations against Law.—They have grasped the Legislative Power in their own Hands, as in that Instance of Printing. The Parliament was considering of that Matter, but they in the Interim made their own private Opinion to be Law.—Mr. Speaker what we have now to do is, to load Edition: current; Page: [1045] them with Shame, who bid defiance to Law. They are guilty of Crimes against Nature, against the King, against their Knowledge, and against Posterity. Tresilian and Belknap were Judges too, their Learning gave them Honour, but their Villanies made their Exit by a Rope. The End of my Motion therefore is That we may address warmly to our Prince against them; let us settle a Committe to enquire into their Crimes, and not fail of doing Justice upon them that have perverted it; let us purge the Fountain and the Streams will issue pure.

It appears from the foregoing Extracts that, during the Dependency of Judges, Princes in all Ages could find such as, notwithstanding the Dread of Impeachments hanging over their Heads, would mould the Law into any Shape they were directed, which evidently rendered the Government arbitrary: Neither were they at any Time deterred from pronouncing unjust Judgments, by the Bare-facedness, or notorious Illegality of them; as in the Case of Ship-Money, when they gave their Opinion of the Lawfulness of levying it, and in open Court defended that Opinion by long and elaborate Arguments, tho’ every Standerby, says Clarendon, could swear they were not Law.

In Maryland the Judges are under no Apprehensions of Impeachments, which leaves the Law freely at their Mercy. Thence there arises a farther Proof of the despotic Nature of that Government, which must necessarily be tyrannical and oppressive, whenever a Governor is disposed to be so; except it may be presumed that the Persons advanced to the Seats of Judicature in that Province, are made of better Clay than Parliaments of England have found the Dispensers of the Law there to be made of.

It might probably look too much like a Jest, should the Representatives exhibit Articles of Impeachment before their Honours of the Upper House against Judges and other Officers under the same Dependance with themselves. The House of Lords, being independent, is therefore a natural, as it is for another Reason a legal Court of Judicature. But the Upper House of Maryland, tho’ it’s Judgments were warranted by Act of Assembly, yet, on Account of the Influence it is under, could never answer the End of the Institution of the Lords in their Judicial Capacity. Such a House, considered as a distinct Branch of Legislature, we have endeavoured to show not only the Uselessness, in respect to the Circumstances of the Colonies, but the Danger of it: But considered, as a Court of Judicature, it is, or something tending to the same Purpose, is absolutely Edition: current; Page: [1046] necessary; for otherwise we cannot conceive there can be either Law or Liberty, but Right and Wrong must be only that which particular Persons shall be pleased to call so. Here the Question occurs, who is to nominate the Judges to this Supream Court, this dernier Resort? Not the Governor surely, as that would frustrate the End of the Institution. Who then? We shall leave it, for prudential Reasons, to the Advocates for Upper Houses to answer. Yet as the Representatives of the People in Great Britain are Judges and Accusers too in Acts of Attainder, so there seems to be an inherent Power in the Representatives of the People in the Colonies to judge and condemn Offenders, with the Consent of the Governor. Tho’ he should reject all Bills inflicting Pains and Penalties on the Officers and Ministers of Justice found guilty of Male-Administration, whose Behaviour nevertheless, might be perfectly agreeable to his Directions or at least to his Inclinations; yet the Inquiries and Examinations necessarily previous to such Bills, against which the Accused may, if they please, be heard by themselves or Council before they pass, might probably, if the Practice became more frequent, for there have been Precedents of the Kind, render Judges more cautious in the Execution of their Charge; for the Apprehension of being liable to the public Censure and Reproach of a whole People, in the Persons of their Representatives, would have some Weight with Judges, however confident they might be, that the Governor, whom they served, would never join an Assembly in consenting to any Bill for the Punishment of their Breach of Duty.

We have hitherto supposed that the Authority of Assemblies in the Plantations extend no further in Regard to the People there, than that of a House of Commons in Respect of the People in Great Britain. Now if by some unforseen Accident the House of Peers should at any Time come to a Dissolution, and, in such a supposed Case, it should be asked on whom would their judicial Capacity devolve? We think it may be first answered negatively, not on the Privy Council, because the Statute for taking away the Star-Chamber, has declared, That neither his Majesty nor his Privy Council have or ought to have, any Jurisdiction Power or Authority &c. to examine, or draw into Question, determine or dispose of the Lands, Tenements, Hereditaments, Goods or Chattels, of any of the Subjects of this Kingdom. Tho’ Cases of Property are only mentioned, yet the Words seem extendible to criminal Matters, according to the known Maxim, that omne majus continet in se Edition: current; Page: [1047] minus.3 The Parliament here not only declares what the Law is but what it ought to be, viz. That the Privy Council neither have nor ought to have such a Jurisdiction, plainly intimating that it would be inconsistent with the Nature of the English Constitution. Yet the judicial Power of the Lords would devolve somewhere, for the Exercise of it cannot cease without a Failure of Justice, which, would draw after it a total Dissolution of the Frame of Government. Therefore one might be apt to think, that on the imaginary Case put, the judicial Capacity of the Peerage would immediately devolve on the Commons. Admitting this Conjecture to be well founded, it evidently follows that Assemblies are not only to be considered as Legislative Bodies, but also as supreme Courts of Judicature from which there is no Appeal but to Great Britain. However, the Doubts and Uneasiness of the Subjects, under such a Defect of Justice, would be entirely removed, were the Point in Question determin’d, and the Mode of Proceeding, in a Matter of so high Importance, directed by Act of Assembly.

The Representatives of Maryland, as may be seen on their Minutes, have drawn up a List of their Grievances to be laid before the Lord Proprietor. They seem to expect, from the Nobleness of his Nature, a Remedy against the Oppressions, which, in their Apprehensions, they labour under, and a Security against the like Mischiefs for the future.

The greater the Difficulty is for human Nature to divest it self of an arbitrary Power, the greater the Honour he acquires that does so. We cannot give ourselves Leave to think, and surely we may think without Offence or incuring the Censure of dictating, that any Person of an accomplished Understanding would ever refuse to set reasonable Limits to his Authority, which, tho’ unbounded, should never pass such Limits; Especially as nothing could more contribute to the lasting Establishment of that Authority. Theopompus,* one of the Kings of Lacedemon, was fully convinced of Edition: current; Page: [1048] the Truth of this Observation, when he consented to the Creation of the Ephors,* who were to be such a Check upon the Kings there, as the Tribunes were upon the Consuls at Rome; for when his Queen complained, that by this Means he transmitted the Royal Authority greatly diminished to his Children; I leave indeed, answered he, a lesser Power than I received but a more lasting one. The Historian, who records this Answer, highly applauds it; because, says he, that Authority is only safe that prescribes Limits to itself; and adds, that Theopompus, by restraining the supreme Power with in known, legal Bounds, and thereby removing it from any Suspicion of its degenerating into Licentiousness, took the surest Method of recommending it to the affectionate Regard of his Fellow Citizens.

This notwithstanding, their Honours of the Upper House of Maryland seem plainly of Opinion, that a State of Slavery would be more suitable, more beneficial to the Colonies than the Enjoyment of their Liberties. This we take to be their clear Meaning,(k) where admitting themselves to be subservient to the Governor, They endeavour to account for that Subserviency, and to show that no Inconveniency can arise from it, inasmuch as Maryland is a Government dependant on Great Britain; for say their Honours, our Sovereign being the Judge, He will never approve of any Act or Behaviour of any Branch of the Legislature, for any other Reason than that of it’s being just and reasonable. But if this be an Argument why the Upper House should depend on the Governor, it is also an Argument of equal Force to prove, that the Lower House should also depend on the Governor; and by the same Rule not only the whole Legislative but Executive Power, in every other Province as well as Maryland, may be finally resolved into the Arbitrary Will of the Supreme Magistrate, and justified on the same Principle namely, That, as our most gracious Sovereign is the ultimate Judge, who will never countenance any Act or Behaviour of any of his Governors, for any other Reason than that of it’s being just and reasonable, They may therefore be safely trusted with an absolute Power over the Lives, Liberties and Properties of the People in the Provinces where they preside. These are Consequences that necessarily flow from the Premisses, which carry with ’em an Aspect equally dreadful and extraordinary; and therefore require an accurate Examination, which will be attempted in our Next.

Edition: current; Page: [1049]

38: [Jonathan Blenman], Remarks on Several Acts of Parliament (London, 1742)

Written by Jonathan Blenman, who had practiced law in Barbados for over two decades and was the sometime attorney general of that colony, this selection is more a treatise than a conventional pamphlet. It consists of five discrete essays, which the author refers to as chapters, on the theme of the relationship between the provincial polities in America and the metropolis. Although the title suggests a wide concern for all “the Colonies abroad,” Blenman’s specialized knowledge of Barbados dictated that almost all of the evidence he presented came from that colony and most of the rest from the neighboring colony of Antigua. Two of the essays (Chapters 2 and 4) deal with defects in Parliamentary legislation concerning the sugar trade, but the other three chapters are what give the treatise special importance.

Chapter 5 provides a general history of the 4½ percent duty voted to the Crown by the legislatures of Barbados and the four Leeward Islands of Antigua, Montserrat, Nevis, and St. Christopher during the Restoration. Although the legislatures of these colonies clearly stipulated that the monies raised by these duties should go “towards the publick Expenses” of their respective islands, the Crown subsequently diverted those monies almost entirely to metropolitan purposes—with the exception, in the case of Barbados after 1698, of an annual sum to pay the “stated English Salary” of the governor. Long a source of resentment in all the islands in which these duties were collected, the diversion of “the Money arising on this Fund to other Uses than those for which the People had originally intended” had, as Blenman explained, at once frustrated the original design of the law and Edition: current; Page: [1050] “proved a Hardship on the People, who” had to find other funds to answer Barbados’s essential government expenses. Moreover, according to Blenman, the Assembly had used the need for these additional taxes to extend its authority over the whole colonial treasury, which had “been the source of most of the [island’s] political Disputes . . . and of the Spirit of Opposition so often exerted there, by the Representatives of the People.”

But Blenman’s treatise is most important for its detailed account of the process of transfer of English law to the colonies, a subject he treats at length in Chapters 2 and 3. Emphasizing that metropolitans needed to be “not only well-versed in the Trade and Commerce of the British Plantations, but also fully apprized of the particular Laws and Constitutions of them,” he used Barbadian legal practice regarding the seizure of personal estates for the payment of debts to show that colonial legal systems could deviate from English legal traditions without violating their spirit. He went on to argue two further points. First, he maintained that the effectiveness of provincial laws rendered metropolitan legislation on the question of debt payment in the colonies “quite needless with regard to” Barbados, where the enforcement of recent metropolitan legislation would both “prove highly inconvenient, and indeed a great Grievance.” Second, and more importantly, he argued that, in the colonies as well as in Britain, when “a Practice” became “general, and has long been continued,” it became “in a manner Lex Loci,” or local law, and “as it were, the Common Law” of the colony. Observing that “every Country has Circumstances peculiar to itself in respect of its Soil, Situation, Inhabitants, and Commerce, to all which convenient Laws ought to be adapted,” Blenman insisted that, whether or not there was “any written Law to countenance or support” them, “peculiar Customs and Usages” that had long been “the Law, and constant Course in Barbados and had thereby become the “Lex non scripta” or unwritten customary law of the colony could “not at once . . . be overthrown, merely because they happen to be at various from those of England.” “To attempt to turn a Stream which had for such a Length of Time took its course almost through every Plantation in the Island,” he suggested, “was in vain.” In his view, custom constituted “a strong Argument . . . against our interfering with the Laws of the Colonies in any Instances that do not directly concern the Mother-Country.” In these passages, Blenman made explicit a set of assumptions about the integrity of provincial laws and the competence of provincial law-makers to oversee them that had long underlain colonial presumptions about the nature of governance within the peripheries of the British Empire. (J.P.G.)

Edition: current; Page: [1051]

Remarks On Several Acts of Parliament, &c.

Price 2 s. Stitch’d.

The Publisher’s Preface.

The following Pieces were wrote, at different Times, by a Barrister at Law, after having practised many Years, with a fair Character, in America. They were occasion’d by some Conversations he had on the Subjects, with two or three Gentlemen of the same Profession here, who happen not to think so meanly of the Colonies as many of less Discernment, and worse Information, would seem to do.

The Author was himself pretty indifferent as to what became of them, provided his Name was concealed.—He is not apt to set a Value upon his best Performances, much less such as were produc’d, for the most part, during a Period wherein his Want of Health seldom afforded him Spirits for Application to any thing which had not a probable Tendency to establish it. Yet he could not be quite indolent with regard to the Interests of his Majesty’s Subjects in the West-Indies, where he had spent so considerable a Part of Life.

But when it came to my Knowledge that those Friends of his above alluded to, were of Opinion these Papers might be of more general Use, I was not displeased, I confess, with the Opportunity of being instrumental in making them so. The Truth is, I had form’d the like Judgment of what I had been favour’d with the first Sight of; and am now assured that some Matters of the utmost Importance to the People concern’d, are here set in a new Light, and others are more copiously handled than they have hitherto been. Nor can it be doubted but the Candid and Judicious will make all just Allowances to the Writer, who was delivering his explicite Thoughts, without any design’d Embellishments, as to a private Company only; and not addressing the Publick. Had this last been the Case, he might possibly have exhibited more Accuracy in Point of Style, Method, and otherwise throughout.

Several of the Topicks discussed in the subsequent Sheets may not, perhaps, be altogether unworthy the Attention of those of high Rank, amidst their other necessary Avocations. We do not, indeed, imagine such can have Leisure, or will be at the Trouble to peruse every Pamphlet; yet it must be acknowledg’d, that Edition: current; Page: [1052] even the busiest of them, if they are wise, will listen to all feasible Hints that are thrown in their Way; and if honest, endeavour to improve them for the Advantage of their King and Country.

Thus much however may be depended on, that what now comes from the Press was neither wrote at first, or sent thither afterwards, with the Views that are most commonly the chief Motives to both. And if such as belong to the Law should not meet with any thing to edify, which they will hardly look for, they may at least be amused thereby; whilst Merchants also, and other Persons of Curiosity, ’tis hop’d, will not be quite disappointed in their Expectations.

T. M.
Edition: current; Page: [1053]

THE CONTENTS.

  • Chap. I. On the Statute of 5 Geo. II. cap. 7. For the more easy Recovery of Debts in his Majesty’s Plantations Page 1055
  • Chap. II. On the Statute of 6 Geo. II. cap. 13. For better securing and encouraging the Trade of his Majesty’s Sugar-Colonies in America, 1071
  • Chap. III. Concerning Executions issuing from the Courts of Law in Barbados, and the Manner of Levying them, 1075
  • Chap. IV. On the Statute of 15 & 16 Geo. II. —To impower the Importers or Proprietors of Rum or Spirits of the British Sugar-Plantations, to land the same before Payment of the Duties of Excise charged thereon, and to lodge the same in Warehouses, at their own Expence, 1086
  • ——— Letter 1. Concerning it, 1088
  • ——— Letter 2. On the same Subject, 1093
  • Chap. V. Concerning the 4½ per Cent. Duty, 1096
Edition: current; Page: [1054]

REMARKS

On Several

Acts of Parliament

Relating

More especially to the Colonies abroad;

As also on diverse

Acts of Assemblies there:

Together with

A Comparison of the Practice of the Courts of

Law in some of the Plantations, with those of

Westminster-Hall:

And a modest Apology for the former, so far as

they materially differ from the latter.

Wherein is likewise contain’d,

A Discourse concerning the 4½ per Cent. Duty

paid in Barbados, and the Leeward Islands.

——— Noli haec contemnere. ——— Sicilia tota, si una voce loqueretur, hoc diceret.1

Cic. in Q. Caecil.

LONDON:

Printed for T. Cooper at the Sign of the Globe

in Pater-noster Row. 1742.

Edition: current; Page: [1055]

Remarks on Several Acts of Parliament, &c.

CHAP. I.: On the Statute of 5 Geor. II. cap. 7. For the more easy Recovery of Debts in his Majesty’s Plantations and Colonies in America.

All Acts of Parliament which expressly include the Plantations (whereby alone they can be affected) will, no doubt, have a more immediate View to the Benefit and Advantage of the Mother-Country. But as the Trade and Commerce of the several Colonies abroad are on different Footings, and their respective Establishments very various, so that what would be proper enough with regard to some, might be highly inconvenient with respect to others, it were to be wish’d, that, before the making of any Statutes of that kind, such Persons could be consulted, as are not only well-versed in the Trade and Commerce of the British Plantations, but also fully apprized of the particular Laws and Constitutions of them. This would probably be a Means of preventing any from being enacted, that might prove either injurious to particular Bodies of his Majesty’s Subjects, or perhaps, upon the whole, unnecessary; and likewise occasion the more Circumspection and Accuracy in penning such as may be really useful, and the better framing and accommodating them to the Purposes for which they are intended. Nor can it be deny’d, but there is such a reciprocal Relation betwixt this Kingdom and its Colonies, that what tends to promote the Good or Hurt of the latter, must in some measure also, in the End, have the same Effect on the former; which will always be in proportion to the Usefulness of those wherein the Alteration is intended to be made.

The Act at present under Debate, took its Rise, if we are not misinformed, from the Complaints of some Merchants of the City of Bristol, always mindful of their own Interest, and who perceiving, about that time, their Returns from America not quite so quick as they desir’d, found an Opportunity of representing the same to such Members of the House of Commons, as had Weight enough to obtain the Suffrage of Parliament in their Behalf; and it seems that the Bill went thro’ both Houses without Edition: current; Page: [1056] Opposition. But what Foundation there was for those Complaints, as far as the Carribbee Islands, especially the Chief of them, are concerned; whether any just Reason, as to them, for the Remedy proposed, and how far it was adequate to the imagined Grievance, shall now be consider’d.

It must be confess’d then, that for two or three Years immediately before this Act took place, the British Sugar-Colonies had been in a declining Condition, owing not merely to the vast Improvements of our Rivals the French and Dutch, especially the former, in the same Trade, but partly also to more immediate Causes, viz. the successive dry Seasons w