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Letter from Josiah Martin to William Legge, Earl of Dartmouth
Martin, Josiah, 1737-1786
July 19, 1773
Volume 09, Pages 675-677

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

No. Carolina, Newbern July 19th 1773.

My Lord,

On a review of my Letters to your Lordship since the last Session of the General Assembly of this Province, I perceive I have omitted to lay before your Lordship a Copy of the Bill that was presented to me during the Session, to continue for six months, and to the end of the next Session of Assembly, the former Superior Court Act which had been so strongly objected to by the Lords of Trade, and was so inconsistent with His Majesty's Royal Instructions that I was obliged to reject it. I have now the honor to offer it to your Lordship's consideration, and I have subjoined to it the clause relative to attachment that was in the second Bill of this tendency brought into the House of Assembly, at the first reading, with which the Council proposed to pass it, as appears by the Message of that Board, and which would certainly have attained it my Assent, as it restrained proceedings on Attachments here, pursuant to the Royal Instructions, to the modes authorized by the Laws and Statutes of Great Britain, in like cases, although it must be confessed, it wanted the precision that Laws ought to have, which arose from the doubts of People here, concerning the Process in England. This Amendment was however rejected on the second reading of the Bill in the Assembly, and the exceptionable part retained on which after repeated Messages the

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Council threw out the Bill. You will find My Lord that I rejected many of the Bills presented to me at the last session, and some of them I am apprehensive your Lordship will think on slight objections, considering the importance of their objects. I will freely acknowledge to you My Lord that there were among the Bills to which I refused my Assent, some, which I should have passed on the ground of expediency, if I could have foreseen or imagined the Assembly would have deserted the public business on the Prorogation for two days, without new modelling those Bills, whose exceptionable parts I had pointed out. After I had declared too, in my speech at that time, that I prorogued the General Assembly, for that short period, that it might immediately reconsider and reform them, and that I had given my Assent to the jury Bill, and such others as were not exceptionable, that had immediate relation to the rejected Court Acts. The loss of the benefit of those Laws, will therefore I hope My Lord be imputable only to the conduct of the Representatives of the People, mine was the pure result of Duty to His Majesty, which I conceived required of me the more strict and exact attention to the Royal Instructions relative to framing and passing Laws, when I perceived so total a neglect of those well known Rules both in the Council and Assembly, and I considered my scrupulous regard to them, as the best means to engage the other Branches of the Legislature to a due respect to those Regulations of His Majesty, a just attention to which on their parts would save a great deal of time and trouble to themselves, and deliver me from the disagreeable necessity of resisting their wishes in the last instance. My conduct at the late Session, will I flatter myself produce some good effects, it ought I think to show the Members of the Legislature that it is their interest to attend to the Royal Instructions, which must at last control their deliberations, and it will assure them of my inflexible perseverance in my Duty to His Majesty, which the Assembly at the last session, seemed studiously to put to the test.

In February last at a Court of Chancery held here, on a decree being made in favour of the Defendant in a cause that had been some time depending between Mr Adair and Mr McCulloh, the complainants council moved for leave to appeal to His Majesty in Council, when it was ruled by the Court, after consideration of His Majesty's 42d Instruction, which relates particularly to appeals to and from the Governor and Council, as a Court of Error, that the Defendant should have leave to appeal provided he gave security to

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prosecute it and answer the condemnation, etc., within fourteen days. As it appeared to me that the design of the King's Instruction was only to secure costs and damages that should be awarded to the appellee, in case the first decree was confirmed, that the term of fourteen days related merely to praying the appeal, and that if security was given before the appeal was actually made it was fully answered. I objected the hardship it would be upon Mr Adair's Attorney, to be limited to so short a time, to procure competent security for so large a sum as One Thousand pounds sterling in a Country where the Party was utterly unknown, and that in default thereof, the complainant who might perhaps be aggrieved, notwithstanding the judgment of that Court, should be precluded of His Right to appeal to Justice in the last resort, and I desired the sense of the Court, that was to rise before the expiration of that allotment of time, whether after it should elapse, if good security was offered, and it should be made to appear to me that it could not be sooner obtained I might accept it, it was decided that I could not. If however, my Lord, the circumstances had occurred, I should have certainly taken upon me, under a different construction of the Royal Instruction, to admit a proper security, for I am persuaded the Interpretation of the Court is not consistant with His Majesty's Justice, nor the meaning of the Instruction, which I shall be happy to learn with certainty from your Lordship.

I thought it proper, my Lord, to direct a minute of my Question to the Court to be entered on the Proceedings, that when they came before the Lords of the Council, it might appear there was a difference of opinion on this head, which may be attended with disadvantage to His Majesty's Subjects.

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