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Letter from Josiah Martin to William Legge, Earl of Dartmouth
Martin, Josiah, 1737-1786
April 06, 1773
Volume 09, Pages 625-632

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

No. Carolina New Bern April 6th 1773.

My Lord,

The regular course of the Law in this Country being suspended by my refusal of the Acts for Establishing Courts for the time present, at the late Session of the General Assembly, I take this earliest opportunity to transmit to your Lordship, for His Majesties consideration, under a Clause of suspension, an Act intituled “An Act for dividing the Province into six several Districts, and for Establishing a Superior Court of Justice in each of the said Districts; and for Establishing Inferior Courts of Pleas and Quarter Sessions in the several Counties of this Province, and regulating the Proceedings therein.” The reasons My Lord for the conjunction of these Institutions in one Bill, as I understand, were, that the Assembly was jealous, and apprehensive, that if the two systems were separated, that of the Superior Courts being of most general utility, might be adopted, while the darling Establishment of County Courts was rejected, that Government (to whose generosity, and indulgence I am sorry to say my Lord, this People are not less invincibly, than willingly insensible, and have a peculiar proneness, to entertain the most illiberal, and sinister suspicions of its measures) would hereafter hold them to the Jurisdiction of the former, and deny them the latter, that both being combined in the same Act, they hope and think they will stand or fall together, and that the expediency of a regular Administration of Justice, and the many salutary provisions of that part of it which relates to the Constitution of Superior Courts, will preponderate, against the innovations, and extension of Jurisdiction

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aimed at, in the Establishment of Inferior Courts, and gain acceptance to the whole.

The most exceptionable parts of this Act, in relation to the Superior Courts, I conceive to be those respecting Original and Judicial Attachments, as well with regard to their Objects, as to the mode of Proceeding upon them. The doctrine seems little to be understood here, and I think this Act authorizes proceedings against the effects of Persons who have never resided in the Colony, repugnant to His Majesty's additional Instruction bearing date the 4th day of February 1772, as inconsistant with or at least not warranted by the Statute or common Law of Great Britain. The Assembly indeed only asserts that they are formed upon the Municipal Custom of Foreign Attachment, obtaining in London and other Commercial Cities, and Towns of that Kingdom the precise mode of proceeding upon which, and its extent the Patrons of it do not pretend to ascertain, but nevertheless strenuously maintain, at hazard, that it enables Creditors where it prevails to attach the property of Foreign Debtors that is found there. Although the Debtors themselves, should have never been within the limits of such jurisdictions, if this be the case I confess to your Lordship I have not after making the most diligent and attentive enquiries, been able to satisfy myself that it is so, but admitting that the Assembly is right, in its construction of this peculiar Custom, it cannot be considered as the general Law of the Land, if however my Lord, it might be applicable to the trading part of this Country. I do not think this Act guards sufficiently against injury to the Property of the Debtor whose effects are attached, by extending the time for him to appear, plead, give bail and replevy, for it is not compulsory upon the Garnishee (who is obliged to swear to the amount of the Debtor's Credits with him, and in whose hands the effects are attached, nor is there any other precaution taken) to give notice thereof to the Owner, it depends absolutely upon the volition and integrity of the Garnishee, in default of which the Debtor is precluded all benefit of the Law, and perhaps essentially injured in his fortune, and may be as ignorant of it at the end of seven years as one. This my Lord I apprehend to be a capital defect, for supposing the People of this Country no more virtuous than the rest of mankind, it may happen, that a Garnishee from motives of predelection to the intent of the person making the attachment, who in such a place as this, is probably his acquaintance, will suffer the limited time to elapse without any notification to the absent Defendant, whose

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Estate will be then seized without his knowledge, while he has no opportunity to protect or redeem it, and only the chance of recovering his property, if unjustly taken, by sueing at a future time the Bond given by the Plaintiff in the attachment. Such collusion my Lord, is the rather to be feared, since I have been credibly informed, that in Cases of Persons going from this to another Province, upon their lawfull occasions, Garnishees have been artificially made by Creditors real or pretended, by continuing to place a trifling consideration in the hands of a third person as the property of the Absentee, upon which grounds, judgments have been recovered, for much larger sums; and the effects here attached in consequence hereof, but I believe such proceedings have been confined to the County Courts.

By the journals of the two Houses of Assembly, which I now transmit, your Lordship will perceive that the Lower House is very tenacious of the Privilege, as it is called of attaching the effects of Foreigners, and that it resolved on the 6th of March nem con not to relinquish it, wherefore and because I consider a further discussion of this point will be fruitless before I receive His Majesty's commands upon it, and that I am convinced frequent dissolutions of Assemblies not only produce no good effects, but tend to excite opposition and resistance, I think it will be advisable to postpone the meeting of the new Assembly unless something extraordinary shall occur, until I am honored with your Lordships Instructions on this head.

While the matter was agitating in the Assembly, so many reasons were urged in defence and support of this mode of Proceeding by Attachment, and on consideration of it since, such a variety of questions arise out of it that I know not how to bring it in all its shapes, under your Lordship's view, without stating to you the Assembly's Arguments, and such as have occurred to me on the subject.

It is first asserted, my Lord (but as I have said above is still a question with me) that the custom of Foreign Attachment prevails not only in London, but in most other trading Cities and Towns in England, and that by virtue of such custom a citizen may attach the effects of any persons whatever, whether subjects of Great Britain or aliens, who have never been within the Jurisdiction of such Cities or Towns, for payment of Debts contracted abroad, with such citizens or their Factors, as well as for satisfaction of such as are incurred within the respective jurisdictions. Secondly, that if proceedings by attachment are not permitted here there will remain to this people

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no means of recovering debts due from Bankrupts in Britain, it being maintained by many persons here, that creditors living without the realm of England are not entitled to the benefits of the Statutes of Bankruptcy, while others admit with me that creditors abroad as well aliens, as natural born subjects are entitled to their proportionate dividends of a Bankrupts Estate, proving their demands within the time allowed by the Statutes, but they all allege that the shortness of the limitation virtually precludes remote creditors

It is held My Lord, and been so adjudged in the Courts of Law here, and the Chief Justice tells me in most of the other Colonies, that although by the direction of the Statutes, the Bankrupt in England is obliged to deliver up all his Estates to the Assignees chosen under the Commission, yet his Effects abroad are not by that Law, so vested in them, as to be put out of the power of the municipal Laws of the Plantations, for that the Acts of Parliament in this behalf are in their operation merely territorial, and do not extend to the Colonies, which are in this respect like foreign States. Whether this Doctrine is altogether well founded, or how far it is so, I will not presume to determine, but taking it for granted in all its extent, I humbly apprehend it may be worthy the consideration of Government, to whose wisdom and justice I am sure it is highly derogatory to suppose it designs to deprive the subjects in the Colonies of the benefits of the Statutes of Bankruptcy, enjoyed by Creditors in Britain, and at the same time of all remedy against an English Bankrupt, by denying them the power of attaching his effects in the Colonies.

Another Argument advanced in favour of this mode of proceeding is, that many of the Merchants of Britain, and especially of Scotland, who are the greatest dealers in this Country, negotiate their business by Factors, some of whom it is alleged whose names lately stood in the firms of Houses in Britain, and are still believed to hold the same interest in them, have withdrawn their names, in order as it is suggested to protect from attachment their Effects, as property of Persons who are not and have not been resident in the Colony, in consequence of the King's Instructions, which the People here believe to have been obtained, by the Representations of the Mercantile Body in Britain.

After mature consideration of His Majesty's Instructions and of all that is said upon the subject, I am of opinion my Lord, that all

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our difficulties on the head of Attachments are involved in the following Questions, vizt

1st. Does the Statute or common law of England, warrant attachment of the effects of persons who have never resided in the Kingdom, and by what mode of Proceeding? or is there no other Law, than the Custom of foreign attachment peculiar to London, and other Trading places, and is that of such extent, and how far, and under what restrictions, will such Law or Custom be allowed to be adopted here.

2nd. Will the Proceedings by original and judicial attachments be permitted in this Colony operating only upon its own inhabitants and those of the other Colonies, and not extending to the property of persons in Great Britain.

It is affirmed my Lord, that most of the other Colonies have laws of Attachment, of which, and of their Effect, I am taking every measure to inform myself, and will hereafter communicate to your Lordship, the result of my enquiries. People of this Province urge, that if they are not allowed the use and power of original attachments, they will not only be upon a worse footing, than their neighbours, by their Effects in the adjacent Provinces being liable to attachment, while those of the Inhabitants of such Provinces are here in security, but exposed to lose their property continually by Debtors in this Country, converting their Estates into negroes, and other moveable shapes, and carrying them out of the Colony.

With respect to the Statutes of Bankruptcy, I cannot help humbly submitting it to your Lordship's consideration whether, if they are not deemed to extend to the Colonies, so far, as to yield their benefits to Creditors in them for debts contracted there as well as in Great Britain, with Principals or their Factors, and to cover the effects of British Bankrupts, and to vest them effectually in the Assignees, it may not be proper to extend them to the Colonies in these particulars, enlarging at the same time the period for remote creditors to prove Debts against the Estates of Bankrupts in Great Britain. This regulation I apprehend my Lord, would obviate every argument in favour of Attachments in such cases, and put the Creditors universally upon an equal footing, whereas if the people of Britain enjoy exclusively, the advantages of the Statutes of Bankruptcy and Creditors in this Province are not allowed to seize Bankrupts effects here, there will be an evident injustice to the latter, which British Creditors will suffer; on the other hand, if persons in the Colonies are entitled

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by the Statutes as I believe to participation of the Bankrupts Estate with the other Creditors, and shall have at the same time the power of taking, by attachment such part of it as they can find abroad, According to the plan I have had the honor to suggest above, equal justice will be done to all the Creditors, altho' I must confess it has to my utter astonishment been asserted that even according to that scheme, the Creditors in the Colonies will not be upon a footing with those in Britain, because they say we give credit here to a Merchant of England, or his Factor upon the faith of what we see in the Country, as well as on the report of his responsibility there, and we ought therefore at all events to have power to attach his effects here, but as these are alike the grounds of Credit in Britain, and all other places mutatis mutandis, I think this objection does not deserve a serious answer, and no other has been offered.

By the Act my Lord of which I am treating, Lands are also made liable to attachment, which His Majesty's Attorney General informs me is repugnant to the Laws of England. No other objection occurs to me upon the part of it that relates to the Superior Courts, but with regard to the appointment of Clerks by the Chief Justice instead of the Governor, which is a point, that I believe will not at a future day, be much contended for; that part of the Act which respects the Constitution of Inferior Courts, is exceptionable in many particulars besides that of Attachments. The admission of so many Magistrates, to be Judges in those Courts, defeats entirely my intention of a Quorum, for according to the plan of this Act, one artfull and designing Justice, joining with the other Assistant Magistrates, will always form a majority, and carry everything against it. My design was my Lord, that all Civil Matters, should be tried by a majority of three at least, of five Justices to be nominated, in each Commission of the Peace, of the Quorum, and that if it was a right inherent in the office of a Justice of the Peace, as some have contended, the other Magistrates should assist in the Crown business, at the same time, that this Establishment of mine is mutilated and destroyed. The Jurisdiction of these Courts that are if possible, upon a worse footing than ever, is extended from matters of £20 to those of £50 amount; and what is still more extraordinary my Lord, the subject is restrained to try his property of value not exceeding that sum in the first instance in these Courts, appeals lying always to the Superior Courts.

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How far the power of the Clerk of the Pleas to appoint Clerks of the Inferior Courts should be recognized, or not in this Act, I am not sure, but I did not consider myself authorized to insist upon it or to interpose further, than to declare I would not consent to those appointments being made otherwise than during Pleasure, which the Assembly maintains ought to be held during good behaviour, whom the Precedent of the Clerks of the Peace holding their offices by that tenure, under the custodis rotulorum. The design of passing of this officer over in silence is professedly with a view to give opportunity to the Magistrate of the Inferior Courts to dispute the rights and powers of his Commission.

Your Lordship will see the sense of the House of Assembly on the Subject of Attachments, fully expressed in the Journals of its Proceedings on the 1st 2nd and 6th days of March. The reasons urged against the Amendment proposed by the Council on the 1st and the reference to the Sheriffs Law, are extremely sophistical for original and Judicial Attachments are employed according to circumstances, the former against Debtors, who are not and have not been resident in the Province, of whom the Sheriff cannot according to the letter of the Law to which the Assembly refers, return non est inventus, that must be the ground and leading process of Judicial Attachments, and the latter in cases of Persons who are or have been resident in the Country, to whom only by the terms of the Act for appointing Sheriffs etc such return applies, but the Lands of Debtors residing out of the Province may be taken, either by original or Judicial Attachments.

Upon the whole my Lord, I cannot help observing that by the stress the Assembly lays upon the expediency and necessity of this mode of proceeding against Debtors in Great Britain one would be led to believe, if the fact was not notoriously otherwise, that the Merchants of that Kingdom were all Debtors, and those of North Carolina all Creditors.

I am now, my Lord, preparing to issue Commissions of Oyer and Terminer for the Trial of Criminals in the several Gaols of this Province, which will have a tendency I hope to procure the Public Peace, and if after I shall receive His Majesty's further commands the Assembly shall not concur in passing Court Laws, conformable thereto, I beg leave to submit it to your Lordships consideration whether it may not be expedient to exercise the powers granted to

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me by His Majesty's Royal Commission to erect with the advice of Council such Courts as shall be necessary, of Civil Jurisdiction.

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