Instructions to Ralph MacNair and Thomas Hart concerning representation of Orange County
Volume 09, Pages 699-706
[From MS. Records in Office of Secretary of State.]
Instructions to Ralph Macnair and Thomas Hart Esquires Representatives for the County of Orange
We have chosen you our Representatives at the next General Assembly and when we did so we expected and do still expect that
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you will speak our Sense in every case when we shall expressly declare it, or when you can by any other means discover it. In all other cases we suppose you left to your own discretion which is ever to be directed by the Good of our Country in general, and of this County in particular. This is our notion of the Duty of Representatives, and the Rights of Electors. And as we remember no time when our Country labored under more difficult and distressing Evils, than the present; or when her Councils proved less Effectual in applying Remedies; so we Judge no Time more proper for Instructing you how to declare our Sentiments on Several Questions which are likely to be stir'd at your next meeting.
First. We Observe by the Proclamation for Dissolving the late Assembly that they are accused of having entered into unconstitutional Resolves, and endeavoring to abrogate a Law by their own Authority. We do not think this ought to be done. But neither do we think the Resolve ought to be viewed in this Light, which only declares that a Tax should cease, that has already drawn from the People more than enough to answer the purpose for which it was laid. We think the Law was to continue only until a certain Event, towit the payment of the Sums Emitted, should happen. And that our Representatives have a Constitutional Right to declare their Opinion concerning such laws and to Enter such Opinion on their Journals. This is what we understand by the Resolve, and think it cannot abrogate a Law or amount to an attempt to do so. Further. If the Sums raised from the People appear sufficient to discharge the Debts contracted by the Public, we think it was the Duty of their Representatives, as far as in them lay, to prevent their paying any more. And we desire you, on every such Occasion for the time to come, to use your best Endeavours to prevent the continuance of Taxes. Also to compel all persons Indebted for monies already levied to a speedy and satisfactory account. And to cause all paper monies, which ought not to be in circulation, to be Immediately withdrawn. If after a full Settlement any Sums are deficient, by Reason of Insolvency of Collectors or other unavoidable circumstance, we think the Public must make it up. But that it will then be time enough to lay a Tax for it. To make People still pay Taxes until such settlement can be brought about, would be leaving room for continuing abuses by Collectors which have long distressed the whole Province, but none more than the Inhabitants of this County. While we are speaking to you of Taxation, we must desire you to look carefully
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into every article of public expence, and use your Endeavours to retrench all such as are not absolutely useful. In doing this we doubt not Fort Johnston will occur to you as having long been an Useless Burthen upon an Exhausted People. We recommend it to you to endeavour at an equal Taxation of Property, and that Lands may be made to bear an Proportion of the public Burthens, for it cannot be reasonable that those who Possess large Quantities of Lands should pay nothing, or but an Inconsiderable Proportion of the Price for protecting them.
Once for all, Gentlemen, we desire you to keep in mind that no part of your Duty more particularly claims your attention than what respects Taxation. You well know the Inhabitants of the County you represent, are, for the most part, poor laboring men, who find it enough for their best endeavours to maintain their Families, and of whom many have been obliged to give up Necessaries which nature stands most in need of as Distresses for the payment of Taxes.
Secondly. In General, we wish Courts of Justice might be so framed that Persons really injured could easily obtain redress. But that it may be difficult for vexatious persons to harrass their Neighbours with Suits and Prosecutions and above all that dishonest, or designing men may not have power to distress any one in his person or Property, under Color, or by the abuse of Laws. In particular we think the late Law relative to Attachments was liable to great abuses, and actually was every day much abused The Western Inhabitants are often obliged to be from home by Reason of the Distance of Markets. And while thus absent on their necessary Business their Effects have often been seized by attachments, in many cases for unjust demands; and before the owner had any knowledge of the matter, have been sold and removed out of his Power. During such absence also, many unjust claims have been established. We have often seen in Courts of Justice, after a man's Effects had been seized and sold by attachment as perishable when a Jury was called to enquire of Damages, no proof could be produced that any Debt was ever due, and they have been required to find a penny under a notion that the Defendant confessed some Damages by not appearing to a suit he never heard of. The Defendants Effects have been charged with costs, and the claimant who could prove no cause has been chargeable with nothing. We have also known valuable effects sold for very little, and as the person charged never had any opportunity of answering, we never could be certain that the Debt
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was just. We think a Law highly Inconvenient which can be so easily abused, and which has been the Instrument of so much Wrong, and that the Inhabitants of this County are much exposed to its bad Effects. We also think no right is of greater consequence than that of being heard before a man shall be deprived of anything, or made to suffer anything and that this Right was every day Invaded by the late Attachment Law of this Province. We therefore desire you not to consent to any Law which may expose us to the like Evils. But we also think that when a man means to get his person out of the way of Justice, some way of subjecting his Effects should be provided. And we think when an Attachment is prayed the Judge or Justice should be required to take the examination of the Person praying it, on oath, and to reduce the same to writing, to be signed by such party, and filed along with the Process, and if it shall appear to the Justice on such examination that the Debtor has removed himself privately, that he conceals himself, and that there is no way of giving him legal Notice of a suit against him, or that he is suspected of an intention to keep his person out of the way of Justice, and to remove his Effects, in such case it should be lawful to grant an Attachment, leaving the Debtor still an Opportunity of disputing such suggestions, & by falsifying them to make void the attachment after at any time before final Judgment. We think the attached Effects ought not to be sold before Judgement, because thereby a man may be much Injured before the Justice of the claim against him has been tried. But suppose it may be Necessary for the Sheriff to mark them, and secure all dead moveables, and that all living Effects should remain in their proper range and Pastures, and subject to the creditors claim into whatever Hands they may come, also that it should be made highly penal for any one to remove or Secrete them, over and above making Such person answerable for the Debt. We also think that when any person by any means contracts a Debt in this Province it is Just that his Effects within our reach should be made liable for Such Debt if his Person be out of reach of our Process, and as all such Effects, if moveable, are in the care of some person as Agent or Factor, we think that notice to such Agent or Factor should be deemed Notice to the Principal Debtor, provided Judgement be deferred until after Such time as the Agent may convey notice to him, and receive his Answer. And if Such Agent neglects to give his principle Notice, he ought to be made liable to
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make him Satisfaction. We are persuaded that such Means as these would take away all Hopes of Succeeding in doubtful or unjust claims by reason of the Absence of the Persons against whom they are set up, and therefore that attachments would seldom be obtained, but where in right and convenience they ought. We also think that when Lands are Subjected to attachments a considerable time should be given to reverse all the Proceedings, and recover the Freehold upon making appear any Injustice. With Regard to what are called Judicial attachments, we think it, in almost every case, impossible for the person Suing to know with certainty that his Debtor absconds, because not the Suitor, but the Sheriff makes Search for him. But we well know that notwithstanding the late Law forbid the Sheriff to return not found, unless he had been at the Place of abode of the Person Sued, yet the Process was often abused in order to gain to Some Suitors an undue preference, and for other unjust purposes. We have even Seen that Writs were taken out during the Sitting of the Court dated as of the Court before, and made returnable to the Court then Sitting, and actually returned into it the same day, and a Judicial attachment awarded. We think these abuses would be Seldom attempted, if the Sheriff was required to make and return a special affidavit, in all cases where the Defendant is not to be found, that he has been at his last usual place of abode and left there a copy of the Writ. We also think that in many cases the Defendant might not abscond at all but yet keep off the Sheriff; and as it would be false that he absconded, so no man could be required to swear it. In such cases we think the Sheriff's affidavit and return of the Truth of the case ought to be deemed Sufficient Ground for an attachment against his Effects; Because there is no Room to doubt his having notice and therefore an opportunity of defending. We also think a Law very Necessary which would oblige the Prosecutor in Indictments for Inferior Offences, to pay costs in all cases where the Petit Jury shall not find Guilty. We believe such a Law would prevent many vexatious Indictments, and we cannot See any reason against it unless that the Profits of the Officers of the Courts might be less. But we hope you agree with us that the Interests and Convenience of the whole Community are of greater Consequence than the advantages of a few Court Officers. We think the Judges should be men eminent for Skill Integrity and abilities, and that all possible care should be taken to restrain
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the appointment to such, and to make it their Interest to perform their Duty. We think their Offices of the highest Importance and that they should be entirely Independant. But we are told there is a Contest on foot for rendering the Chief Justice Independant of the People, tho' it is supposed he is still dependant on the Crown, and that the method proposed for doing this is by revising a Law which gave him fees on Suits. We disapprove of the End, and the means for bringing it about. We wish to see so Important an Officer Independant of Both. But, if this cannot be obtained, we desire you never to consent to a Law which shall leave the Interests of one, who is to decide on the Rights of your fellow Subjects, exposed to the Influence of the Crown, and free from the Constitutional Influence of the People. Such an Officer, so situated, we should dread as an Instrument to speak away our most sacred Privileges whenever the Crown should require it. As to the means, We think Fees on Suits are Improper, at least for two reasons. The one, because it Tempts the Judge to multiply Suits, and to hasten the decisions before they are sufficiently considered. The other, because the Poor are most exposed to wrongs from the Rich, and will therefore have greatest and most frequent need of redress, yet find it most difficult to obtain it. We mean not anything here said as pointed against any Magistrate or Officer in Authority, but we think Laws should be made with a view to hinder the mischiefs that may arise from the Government of the worst men, for we know not how soon we may be Subjected to them, and from such Laws we think good men will feel no restraint because they can have no Inclination to break them. We wish the Jurisdiction of Inferior Courts might be enlarged; and if Suits for Small Sums are permitted to be brought in the Superior Courts, we think the Expences ought not to exceed the Expence in the Inferior. We are Sorry the Situation of the Poorer part of the People was either overlooked, or disregarded by the late Assembly, in making a Law whose Effects are partial to them. They feel themselves every day distressed for the payment of small sums, while their Richer Neighbours owe them much larger which they cannot compel payment of. We hope hereafter that the Courts of Justice will be open alike to all orders of men.
Thirdly. Should the Courts of oyer again become the Subject of debate we desire you not to admit that Courts can be erected by any Power but that which can make Laws. We think that a free
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people can have no Power exercised amongst them, but such to which they have given their Consent and that the consent of the People of this Province can only appear by their Acts of Assembly. The Evidence of consent which arises from usage can have no place amongst them, because they are too young to have long approved of any usage, and at their beginning they knew how to give better Testimony of their Consent. The long approved usage of the People of England only proves the Consent of the People of England; and is of no force here but to point out what is Just and useful, and therefore everywhere Lawful. Where their usage is not Just, or of no use to us (which may depend on our Circumstances) we think our Judges and Juries have a right to refuse them, but they have no right to refuse Acts of Assembly; yet we think there is a Power in the Crown of applying remedies to very pressing Evils for which no Law has provided, and the necessity and manner of exercising this Power must afterwards be Judged of by the People either as Juries in Courts or as an Assembly, and if they find there was Necessity, that an expedient remedy was applied, that the manner of applying it was not oppressive, and in a Word that the power was not abused, we think the persons employ'd in it ought to be excused, but severely punished if the Contrary appears. We think the Courts we are now speaking of were a Necessary and useful remedy for very pressing Evils. We were Witnesses of the Necessity, and that they were not abused, and we have experienced their Usefulness, and at this time derive very Considerable security from their Effects. We would contribute to a liberal Satisfaction to the Officers employed in them with greater Chearfulness than to many objects of Expense which now swell the public Taxes.
Fourthly, we are told that the Indemnification Law is disapproved of by his Majesty, and that it is required to be explained so as to prevent its covering from Justice Such as through Ill nature, Avarice, or private Malice committed unnecessary Acts of Violence during the late unhappy Troubles. We rejoice Gentlemen in this Instance of his Majesty's fatherly attention; and we are sorry that in framing that Law our own Assembly had so little attention to the distresses of their Innocent fellow Subjects, and if they had any motives for wording it so loosely we have reason to lament still more. We desire however that you endeavour at this Explanation
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so that all that is useful of the Law may be retained; all that is wrongful may be left out.
Fifthly, we think the Sheriffs Law wants much amendment, particularly the Bond required to be given is not for a Sum large enough. The Taxes of this County at present amount to three times as much as the Penalty. And we have known many abuses by Reason of leaving an unlimited time to make their Collection. Very many of the Inhabitants of this County, who, being unlettered, have not required receipts, or having got Receipts unavoidably lost them, and upon Demand being made many years afterwards were unable to prove the former payments because of the Death or Removal of Witnesses of the Loss of the Receipts. Many Demands have also been made where the receipts have been produced. To Remedy this Abuse we think the Collection should be made within a Limited time, and that not to exceed—Years. We cannot See that giving more time can make the Collection more easy, and we think it only leaves the power of Extorting but not of doing Good.