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Letter from Josiah Martin to William Legge, Earl of Dartmouth
Martin, Josiah, 1737-1786
March 31, 1773
Volume 09, Pages 618-623

[B. P. R. O. Am. & W. Ind: No. Carolina. No. 220.]
Governor Martin to Earl Dartmouth.

No. Carolina, New Bern, March 31st 1773.

My Lord,

I have the honor to acknowledge the receipt of your Lordship's Dispatches No. 1 and 2. I am extremely happy in the honor done me by your Lordship's approbation of my seeming attention to the matters with which I have been charged, and I do assure your Lordship that my zeal for the King's service will ever oblige me to fulfill to the best of my ability all such orders and directions as I shall have the honor to receive in command from His Majesty and your Lordship.

I must acknowledge, my Lord, that when I suspended Comptroller Malcom I had no more question that the powers vested in me by His Majesty's Royal Commission warranted such a step than that the nature of his offence demanded it, but since I have been honored with your Lordship's sentiments on that measure, and that I have reviewed my authorities as to this point more attentively, I incline to your Lordship's opinion, that if such power over the officers of the customs was designed to be given to His Majesty's Governor it does not anywhere clearly appear, except in the 25th Article of the King's Instruction relating to Trade, in the particular case of neglect or connivance, with respect to ships coming from the East Indies.

But lest I should be deemed to have exceeded my powers in that case, I have thought it proper, my Lord, since I have been favoured with your Lordship's letter to refer some complaints of no less atrocious complexion, made to me against Mr John Pierce, Collector of the same Port of Currituck, to the Commissioners of His Majesty's

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Customs, whose authority he has set at defiance. Upon this subject I think it my duty to observe to your Lordships that if His Majesties Governors in the Colonies have not power to suspend officers of the Customs, it may be expedient to vest them with it, for if there is no controlling power over them in Provinces so remote as this is from Boston, the seat of the Board of Commissioners, great mischief may accrue to His Majesty's Service before they can interpose, as it can hardly be less than four and will be often six months before they can be informed of delinquencies here, and apply proper remedies. This measure I only mean most humbly to offer to your Lordship's consideration.

With regard to the Court Acts, I am concerned to inform your Lordship, that I was obliged to reject it at the late Session, such as were calculated for the present administration of the Laws. I have already submitted to your Lordship the reasons upon which I rejected the first, and the Council threw out the second Superior Court Bill, that designed to constitute Inferior Courts was liable to objection upon the same principles, and had besides so inseparable a connection with, and relation to that Law; and was I thought so absolutely depending on it, as to be utterly nugatory without it. Wherefore my Lord, and because I knew that a majority of the Assembly were Magistrates whose policy and aim it had ever been, to usurp to the County Courts as much power as possible, I feared that those little jurisdictions were once established alone, that Branch of the legislature, designing thereby all the power of the Laws into their own hands, would be less willing to erect Superior Tribunals, if they should not openly oppose their future Establishment. On all these considerations my Lord, I conceived the Inferior Court Act, as unfit, as incompetent to stand by itself; but allowing no weight to these objections I am clearly of opinion, that a total privation of Courts will the more readily induce a compliance with the just measure his Majesty has been pleased to prescribe.

I passed under a clause of suspension, an Act for establishing both Superior and Inferior Courts, which I shall do myself the honor to transmit singly, with my observations upon it at large, before the other Acts of the last Session, can be prepared, that it may have your Lordship's consideration as early as may be. After suggesting the plan I had the honor to submit to the Earl of Hillsborough in my letter No 18, part of which your Lordship has been pleased to approve, to some few of the Members of the House of Assembly, who talked

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to me of improving the plan of the County Courts, I left the Legislature pursuant to your Lordship's sentiments expressed in your letter No 1, that I received at that juncture, to exercise its own discretion in framing this Act, which I thought it not improper to pass in a shape wherein it could have no effect until it received His Majesty's approbation, as I apprehended no description of mine would so well convey to your Lordship the ideas and wishes of this People, and that it might be at once adopted if it should meet with the Royal allowance. Regardless of my plan or at least retrenching it of all its essential advantages, The power of appointing Clerks of the Superior Courts that I proposed according to the direction of the Lords of Trade, to be vested in the Governor, is reserved to the Chief Justice, and the appointment of Clerks of the Inferior Courts is passed over in silence, the Assembly declining to recognize the power of the Clerk of the Pleas over those offices, maintaining that by the common law of England the right of appointing Clerks resides in the Chief Justice in his Court, in the other Judges in their respective Courts, and therefore in the Justices of the Inferior Courts here, so that by taking no notice of the Clerk of the Pleas in this Act, they intend as I understand not only to disclaim his power, but to exercise or at least to contend for it themselves. This contest my Lord arises from the influence of the Clerks in the House of Assembly, who under the late Court Law were vested with their offices, during good behaviour, which they maintain also is the tenure prescribed by the common law of England, and is a condition I declared I could not admit, the Earl of Hillsborough having enjoined me to refuse my assent to any Law authorizing these Appointments to be made otherwise than during Pleasure.

I own to your Lordship, my expectations of the fate of this Act do not correspond with those of the People of this Country, as I see little recommendation that it has, besides its intended permanency; that is a ground upon which I could almost wish, it to take place imperfect as it may be in other respects, for the short limitation of these fundamental Institutions has heretofore held the constitution of this Country in an uncertain fluctating and changeable state, and been the source of periodical strife & embarrassment. I had prepared a message to send to the Assembly relative to the Sheriffs Law pursuant to the direction of the Lords of Trade, by their Lordship's letter, bearing date the 12th of December 1770, to Governor Tryon, but perceiving by its answer to the 4th day of March

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to my Message concerning the establishment of the Post Office according to His Majesty's Instruction, that the House was not disposed to do any more business than what lay before it, I forbear to send it, thinking it not only needless, but that like most other measures of Government, it might excite unreasonable jealousies, and give the people opportunity to concert, and form an opposition to it, before the matter was agitated.

My former letter will have assured your Lordship, that the opinion I have conceived of Mr Strudwick the present Clerk of the Pleas, hath removed every apprehension of mal practices in that office.

In obedience to your Lordships Commands I am to inform you that the Embargo of which I apprized your Lordship last Autumn, was laid on a prospect of the extremest distress in the interior parts of this Province, of which the Members of Council who advised the measure were eye witnesses with myself, and on the Representations of the principal Inhabitants of that Country; there is no Law My Lord, that I can find warranting this Proceeding, but it has the sanction of many Precedents during the Administration of former Governors. I confess to your Lordship there was no exception of Grain and flour exported to Great Britain but these Commodities have never yet been shipped from hence to that Kingdom. I am highly sensible My Lord of the obliging condecension with which your Lordship has done me the honor to instruct me on this matter, and you may depend I shall pay the strictest attention to your Lordship's Commands on this and every other subject. Indian Corn My Lord is the Grain mostly cultivated in this Province, but I learn that the farmers here, after the example of the Virginians are going more and more upon wheat, the Embargo your Lordship's will have observed, was calculated to continue only until the latter end of November at which time the Indian Corn is gathered in, and when the Harvest might be ascertained, which proved by reason of some late partial rains, better than was expected.

I shall carefully observe your Lordships Instructions with regard to the Quorum of the Council, and you may depend My Lord, that I will never, but in cases of the last necessity act with a less number than the King's Instructions prescribe, although the remote residence of the Members and the aged, and infirm condition of many of them will I fear, often put me to difficulty.

I am concerned to inform your Lordship that the Act of Pardon and oblivion, that I was authorized by His Majesty to propose to the

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Legislature was rejected at the late Session in the Council, the Assembly not having made in it so many exceptions as that Board judged expedient. I have no doubt however, that it will be passed at a future time, and perhaps in the present circumstances of things that there is no regular Administration of Justice in the Country, it may be as well that the dread of punishment should impend the offenders who were the objects of that Act.

With respect to the Chief Justice My Lord, I shall govern myself by your Lordship's opinion, on the case I had the honor to propose to your consideration.

I do assure your Lordship, it was not for want of diligent enquiry that I could not inform myself here, of the Laws that were in force, but I could receive no satisfaction about it, the Laws of this Province are more rare, than any book can be named, but a new edition of them is coming out, when I hope they will be better known, as well as better observed. The Act My Lord that relates to the Vestries in the Counties of Guilford and Wake precludes the Presbyterians in those Counties from becoming Members thereof, which is an office open to that denomination of People in all other parts of the Province, as I considered it merely a matter of Church Government, and that the dissenters in the County of Guilford, rested their discontent entirely upon being put upon a footing different from the rest of their Sect, in this respect I recommended to the Assembly by a message on the 2d day of February, as will appear to your Lordship by the Journals, to put that whole people, with regard to Vestries, upon one uniform Establishment agreeable to the Laws of England, and I did this My Lord the more readily as I had late convincing proofs that the Admission of Dissenters into Vestries operated as a prohibition to the Establishment of the Church of England, that in the Parish of St Luke in the County of Rowan, they had actually expelled Mr Drage the Rector, a very worthy Clergyman, by withholding his Salary, the only means of his subsistance, and forced him to retire to an Asylum, to which he was invited in South Carolina, and that the negative declaration, that Vestrymen are required to repeat and subscribe at their Election, by the Act of 1764, obliges them not to maintain, and support but only not to oppose the doctrine Discipline and Liturgy, of the Church of England as by Law Established, which is construed by the Dissenters into an allowance of, or connivance at utter passive neglect; this measure however I certainly should not have taken, if I had then received your Lordship's

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Letter, but it had no consequences except the passing an Act to dissolve the Vestry of Unity Parish that had been illegally chosen. If My Lord, I could have conceived it had the least tendency to rigor against the Presbyterians, my own conscience would not have permitted me to propose it, for I admire the generous, humane and tolerating spirit of the Laws of England, & have ever considered their tender regard to conscience among the noblest characteristics. of the British Constitution.

Pursuant to a promise I lately made to some of the Dissenters in the County of Rowan to lay a petition they presented to me before his Majesty, I have now the honor to transcribe a Copy thereof to your Lordship. It is signed by many persons of good character, who have been on all occasions the steady friends of Government.

I have the honor to be & c
JO. MARTIN.