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Letter from Josiah Martin to William Legge, Earl of Dartmouth
Martin, Josiah, 1737-1786
December 24, 1773
Volume 09, Pages 791-801

[B. P. R. O. Am. & W. Ind: No. Carolina. No. 221.]
Letter from Governor Martin to Earl Dartmouth.

North Carolina, New Bern December 24th 1773.

My Lord,

My Letter of the 16th instant, will have prepared your Lordship to expect no beneficial result, to the then Session of the General Assembly of this Province, and it is matter of inexpressible concern to me, that I must now inform your Lordship, its conclusion, but too exactly corresponded with my forebodings.

The spirit of discontent that discovered itself in the first proceedings of the House of Assembly, still appearing in its renunciation of the regulations proposed by Government, concerning attachments, and the adoption of the rules relative to that mode of proceeding, in the Bill for constituting Superior Courts (that had now passed the Assembly three times) which had been considered by your Lordship inadmissible, in the Act passed at the last Session, under a suspending clause, and the consequent failure of this Bill in the Council, putting an end to all hopes of the present establishment of Courts of Justice, upon any plan, in which I was at liberty to concur; I considered it the proper season, to bring the session to a period, by

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prorogation not only, as no Laws that could be framed, would be essential, while no mode of administering them was established, and that a prolongation of it would enhance the public expence to no purpose, but as the most gentle means, to prevent the Assembly, entering into further measures, more offensive to Government than any yet taken, which might be apprehended from the present temper of that House, and which it was to be feared would tend to the disparagement of the reputation, if not to the detriment of the interests of this People, by disposing His Majesty to listen the less graciously to any solicitations of their representatives, on the point for which they were contending.

It is my duty to inform your Lordship that there was depending at the time of the Prorogation, a Bill for the establishment of Inferior Courts, in the several Counties of this Province, and I have some reason to believe, it would have passed the Council, by a majority of one voice; the interest that the House of Assembly composed of Magistrates, and Clerks of those Courts, had in this Bill, which was calculated to throw into their hands all the power of the Laws, while no Superior jurisdiction was erected, would have induced that House, it may be presumed, to prune it of those parts that should appear inadmissible to the Council, but as the allowance of an appeal to the Superior Court, was indispensible, and a regulation that could not be omitted, although it was perfectly useless, if not absurd, while no Court of Appeal existed, because it would have been to declare the determination of these Courts final, to the extent of their jurisdiction contrary expressly to His Majesty's Instructions, that as their power virtually became unlimited, for want of the superior comptrolling jurisdiction, to which appeals might be made, and that the notorious corruption, and abuses in those little Courts, convinced me they would on such a footing, become nuisances of the most grievous and oppressive nature I thought it contrary to every idea of good policy, to establish them alone, and I was the more confirmed in this belief, when I found many of the most judicious people of this Country concurred with me in opinion, that the Members of the Assembly acting upon uniform principles, would hereafter unwillingly relinquish the sole power of administering the Laws, with which they found themselves, and their fellow Justices invested; and hardly be prevailed upon, to consent to the Establishment of Courts of higher dignity, & jurisdiction that would review, regulate, restrain, censure and condemn their proceedings

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The many, who favored the Establishment of these Courts alone, reasoned differently. They alledged, that as the suits brought in them would be suspended by Appeals, upon which no decisions could be made, their incompetency would be soon discovered, and must necessarily induce the Erection of Superior Courts, that besides, Sheriffs, Constables and other Officers, useful and necessary to the Community, might be appointed. The Taxes might be collected and as far as their power extended justice would be administered. To these arguments I answered, that it was well known the Assembly of this Colony had ever more aimed at a Constitution of County Courts upon the plan of those in Virginia, with unlimited jurisdiction, that having exercised it as they would certainly do, when there was no power to confine them to the limits the Law in question prescribed, as they had not kept within those bounds, while the Superior Courts constantly superintends them, it was not feasible, that the Members of that Branch of the Legislature, would easily resign power, for which they had so long and zealously struggled, that would add so much to their own weight and consequence, and that they had now once acquired, although it was only by the usurpation of those Courts; that with regard to appeals from those Courts, it would depend upon their arbitrament to admit them or not, and it was not to be taken for granted that they would pay any deference or respect to such a Phantom, as now existing Superior Courts must be considered, when it should not accord with their interests or inclinations and when the recognition of it would always tend to the abridgement of that fullness of power which they had so assiduously laboured to obtain; that it was true Sheriffs might be nominated and other Officers appointed by such Courts, and that they might exercise other powers, vested in them by the Laws, with some advantage to the Public but that with relation to the receipt of Taxes at the Treasury, the principal object, their authority as limited by Law, would be ineffectual to compel the Sheriffs to pay the monies they collected, and it appeared by the vast arrears now due to the Public, from those Officers, how unavailing it was to the Colony to draw money out of the hands of the People into theirs. That it was well known how little Justice had ever flowed through those Channels, and it was reasonable to apprehend, that power unrestrained lodged in the hands of such People as the Magistrates of this Country, so utterly ignorant of the principles of Law would become more an engine of oppression, than relief
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to the King's Subjects. After maturely weighing this project of erecting County Courts, in which the sole power of administering the Laws would reside, with powers of jurisdiction so limited, and yet in the present circumstances of this Country and People, so confessedly too great,—and having pursued its train of obvious consequences, it appears to me my Lord, I will freely confess, a monster in policy that common sense would almost blush to contemplate, and I can never cease to wonder at the eagerness with which it has been agitated when I see a People so warmly foster a plan, that according to their own designation, was competent, at best, only to the recovery of trifling debts, and to the chastisement of the little knave, and reject at the same time every provision for the security of large property or for punishing the Assassin, the felon and the murderer because they cannot obtain a mode of proceeding against debtors, in certain cases, according to their own sense of necessity. I am lost in amazement but when I ponder on the deplorable state, to which this unhappy Colony is reduced, by such an extraordinary solecism in politicks, the horrors now impending, and the gloomy prospect that still lies before it, I feel the most pungent affliction. I have acted my Lord with regard to this Bill upon the same principles that induced me to reject that of the same purport at the last Session; and as your Lordship did not disapprove my conduct then, I flatter myself you will not now condemn it.

It will appear to your Lordship from a Copy of the resolves of the House of Assembly, transmitted with my last letter, that it was one of its first steps to declare the Courts of Oyer and Terminer which had been held in the Province since the former Session illegal, without so much as an acknowledgment of their expediency, and utility that were universally admitted, out of that House. By this measure my Lord, the powers granted by His Majesty's royal Commission, for the Protection of His Subjects in this Colony, are reduced to nullities in effect, as much as if they had been cancelled by the royal or Parliamentary authorities, for it cannot be presumed that the People of the Country would attend as Jurors, Courts that their representatives have condemned as unconstitutional. I have however thought it my duty my Lord, to impart to the Council, in solemn confidence the direction I had received from your Lordship, in case of the event that has now unfortunately taken place, to exercise the power of constituting Courts of Civil and Criminal

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Jurisdiction, with the advice & consent of that Board, as granted to me by His Majesty's Commission, and it has concurred unanimously in my opinion, that the attempt would not only be unavailing, but inflammatory. I shall therefore my Lord forbear to make the experiment, but in the case of some great exigency and endure, as well as I can, to see this People the victims of their own imprudence, & suffering all the fatal consequences attending the want of or due administration of Justice; that is happily enjoyed by all the other subjects of the British Empire.

By the Speech I delivered at the conclusion of the Session of the General Assembly, a copy of which I transmit herewith, your Lordship will see it stands prorogued to the first day of March next, at which time, if nothing occurs, to assure me it will be productive of no good effect, I shall insert it, and recommend again, some system for the dispensation of Justice: leaving to the issue of an intended application to the throne, the matter that has hitherto caused so much embarrassment.

I return my Lord to that painful subject. I thought it proper, at the opening of the Session, to set before the Assembly the regulations proposed by your Lordship's letter, with respect to the proceeding by attachment, and lest by any inapt expression of my own, I should convey a meaning different from your Lordship's intention, I communicated them as nearly as I could, in your Lordship's words viz. “That His Majesty was graciously pleased, to allow of provision being made here by Law for Attachments, in cases where the cause of action arises within the Colony, due proof being made upon Oath, before such attachment issues, whether original or judicial, that the defendant in the suit has absconded to avoid payment of his debt, and that the ordinary process of Law cannot be served upon him.” It was very early observed my Lord, and remarked to me, that a case, could scarcely occur, wherein a creditor, according to these rules, could obtain an attachment against the effects of his debtor, as he would be obliged to swear to the intention of the absconding person which was impossible, as it was above the faculties of man, to determine with any certainty, the motives of each others conduct, that a man owing debts to many persons might be supposed where there was no apparent cause for his absconding to be moved by that of his debts, but not especially and solely, by the debt due to any particular creditor, who might sue for the attachment. I own to your Lordship I felt the force of this objection, and replied,

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that I considered the words of my Instruction, to be a general direction, for regulating the proceedings by attachment, and that I saw no objection to changing the word debt, to the plural number, when it should be inserted in the Law, that I did not conceive it necessary to prescribe any particular form of Oath but that it should lie with the Magistrate, or the Court, having power to grant attachments, to decide what was the due proof that entitled a plaintiff to that process according to those restrictions, but that if it was necessary to direct a particular form of Oath, I thought, if it was couched as follows it would apply to most, if not all cases where Attachments should be used. That however, it was not perhaps in human ingenuity, to put together a form of words, that would comprehend every circumstance of every case, wherein it might be justifiable to issue this writ, vizt: I, A B do swear that C D is, or is to the best of my knowledge, and belief, justly and truly indebted to me in the sum of £———that he has absconded (as I verily believe to avoid paymt of his debts) and that the ordinary process of Law cannot be served upon him. To this, although at first received with some complacency, it was soon objected, that it was immaterial to the Creditors, what cause operated upon the Debtor to put himself out of the reach of the ordinary process of Law, and, that he should be at Liberty to attach his effects, upon due proof, that he absconded so that the ordinary process of Law cannot be served upon him without any, of the cause of his absconding. I could only answer to this remark, that I apprehended, the Creditor should show some evidence of fraudulent design in his Debtor, before he should be subjected to the penalty of a fraudulent action; that debt was a very common cause of peoples absconding, and that scarcely any man hid himself or fled his country, without leaving some traces of the cause, that might be investigated, that where there was no other apparent or assigned, but that of his being in debt, it might be fairly considered the principle of his conduct. The following case was then put. Suppose A. B. indebted to C. D. by bond, payable at any future time, that A. B. goes professedly, on account of his health, or business, or for amusement to a remote country, having effects here, and does not return to discharge his obligation to C. D. and gives no direction to his Attoreney, or Agent here, to do so, but on the contrary, has ordered him, to the knowledge of C. D. to sell his effects and remit their product to him. Suppose further that C. D. knows with certainty, that his Debtor is held in Gaol in this distant
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Country by other Creditors, or that he is gone upon a long voyage, from which it was impossible for him to return at the time appointed for payment of his debt to C. D. can the Creditor, in such case, make any proof of the Debtor absconding to avoid payment of his debt or debts, and shall he not have remedy by attachment of his effects, at the time his debt becomes due; when, if he was present, he might take his person?

I answered to this, that I knew not what meaning the word abscond might have, in the contemplation of Law; that I thought in the case stated the lot of the Creditor would be hard, if he could not seize the effects of the defaulter. That it was very particularly circumstanced perhaps, such as in the secure dealings of merchants had seldom or never occurred, and that it might be one, among other extraordinary cases, for which the Laws of England had provided no relief although I could not persuade myself that they had not, however ignorant I was of it, except as to persons subject to the statues of bankruptcy nor have I been since able to get any information on this head, that is satisfactory.

We are extremely ignorant here, I believe, of all the Law and Doctrine, of Attachments, but I flatter myself my Lord, as it has proved so insurmountable a difficulty to us, your Lordship would be pleased to give me all possible light on the subject. The people here think themselves entitled to proceed according to the custom of foreign attachment obtaining in London & other commercial cities of England, and that it has an extent beyond the cases and limitations of my Instructions, although I have ventured to assure them upon your Lordship's authority, that the regulations with regard to attachments there go no further. The few moderate people I meet with maintain their right to this, and every mode for the recovery of debts, that their fellow subjects in England may practice against them, and so far they seem reasonable, and I apprehend come into the views and policy of Government. But it still dwells upon the minds of all, that by this custom, of foreign attachment, a citizen of London, Bristol, &c., can attach the effects of an American found within their Jurisdictions, for a debt contracted here or there; and whether the American has, or has not been there, or may or cannot (according to the common acceptation of the word) be said to abscond. But those of this class with whom I have conversed, say, they will be content with the use of the Law or custom of foreign attachment, as it is used in London and the other trading cities in England;

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however that may be, the more intemperate, declare, they will never be satisfied, until they are also allowed to proceed by Attachment against the Inhabitants of this & other Colonies, as they do against them. I find my Lord, that Attachments are used in all the Provinces of the Continent, each differing from its neighbour somewhat in the mode of proceedings and I believe their operation is in all very extensive, but I have not been able to learn, with any precision, how far the regulations go in each. I have heard however, and I think from good authority, that the proceeding is not confined to cases where the cause of action arises within the respective Provinces, but your Lordship being master of all their Laws, will easily discover the practices of the several Colonies in relation to this matter.

The last step of the House of Assembly, at the late Session, was to enter upon the Journals a resolve that Governor Tryon should be addressed, to forward a Petition to the King, supplicating His Majesty to comply with their wishes on the subject of attachments, &c., in which I was entirely overlooked and neglected. This I am informed was suddenly concluded on, some say just before, others immediately after the delivery of my message, requiring the attendance of the House in order to its prorogation. However that may be, it was certainly a measure heartily adopted, and concerted by a Mr Robert Howe and a Mr Isaac Edwards, two Members of the House of Assembly, in spleen to me, for which I know no other reason, besides that of having steadfastly adhered to my duty to His Majesty, in the unhappy contentions of the Session. With respect to Mr Howe, I am not indeed altogether without grounds upon which to form conjectures about his resentment. When I came to this Government my Lord, I found him Captain of Fort Johnston and Baron of the Exchequer, the incompatibility of which offices struck me immediately. Learning soon afterwards that Governor Tryon, upon a vacancy, having some years ago preferred the worthy and aged Mr Hasell, president of the Council, to the Office, of Chief Justice, took from him that of Chief Baron, which he conferred on Mr Howe, and had not restored it to him, when he was superseded by a Chief Justice of His Majesty's appointment. I took occasion to tell Mr Howe politely, my sense of the incongruity of his military and judicial Offices, as well as of the better right of Mr Hasell to the Baronship of the Exchequer (with only £40 per annum) not only in consideration of his having relinquished it for an office of which he had a very short tenure, and had long lost but on account of his rank in

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the Country, the gravity and respectableness of his character, and his long, faithful and unrewarded services to Government. Mr Howe could but acknowledge the justice of my observations and intentions, and Mr Hasell was accordingly appointed Chief Baron in July last. By the arrival of Capt: Collet a very amiable and worthy young Gentleman and excellent Officer, who is Governor of Fort Johnston by the King's appointment, Mr Howe was superseded in the command of that place. Thus he was deprived of a post of contemptible profit to a man of honor that he, by somewhat extraordinary management of the Public money that came into his hands for the support of the Garrison, had made very lucrative to himself, and that served to keep together the wreck of a good fortune he inherited in this Country, of which he is a native, that he had nearly outlived. Pity for these his circumstances alone, prevented me from removing him from the command of Fort Johnston some time before he was superseded, for I must confess I was no stranger to his misapplication of the Public money. He is a man of lively parts and good understanding, but in other respects and character of no account or consideration in the present desperate state of his affairs. It seems he is aiming to establish a new reputation by patriotism, or in other words (for they deserve to be synonymous here, my Lord) by opposition to the measures of Government, in which I perceive he doos me the honor to mix at least, dire animosity to me, as an humble instrument of it.

Mr Edwards, his coadjutor in this affront to me, was Governor Tryon's secretary while he resided in this Province, and thence derived all his consequence. In respect to that Gentleman and in consideration of the orward obligingness of Mr Edwards behaviour to me, I conferred upon him, less than a year after my arrival here, first on the default and afterwards on the death of Mr Frohock, the Office of Deputy Auditor of this Province, one of the genteelest, and most lucrative places in it, and Mr Cholmondeley was pleased, at my earnest solicitation, to confirm him therein. He has since married the daughter of a considerable merchant here, and the poor man's head is giddy with prosperity, it is worthy of observation my Lord, that giving, and taking away, have produced, in these instances, the same effect, for my particular countenance of Mr Edwards, and preferring him to the best post that has fallen in my disposal, are the only grounds of his malice to me that I can possibly divine, unless, I could suppose, my differing in opinion with Mr Cholmondeley,

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about his having immediately a seat in the Council of this Province, for reasons, in which he himself concurred, another cause of his resentment. I heartily forgive his ill requital of my kindness, that I am sorry to say, is far from being without example. But I am much less disposed to consider favorably his warm, open and declared opposition to every proposition of Government, that was agitated in the House of Assembly at the last session; at which he first appeared a Member of the Legislature. For myself, I am alike indifferent, to the applause, or censure, of men of such principles, as those I have now mentioned to your Lordship.

I am glad, with all my heart, that their evil dispositions towards me, have drawn upon my Friend Governor Tryon a compliment and mark of confidence, to which his services in this country so greatly entitle him; it is a real mitigation of the pain I have felt, from the wound given me through him, that his merits are illustrated by it, and it is my sufficient consolation, that I have been assured, all but the immediate contrivers of it, look back with shame and indignation, to the unmerited insult, in which they blindly concurred. I am not insensible my Lord, that strictly pursuing your Lordship's commands, I ought to have prorogued or dissolved the Assembly, on the refusal in its address, to adopt the regulations proposed by Government, but I hoped the ferment of that day would subside, and that the representatives of the People, might at length attend to the interests of the country, and frame some system for the administration of Justice, that would not be incompatible with my Instructions. I trust your Lordship will not disapprove my moderation, founded on such wishes & expectations.

I know not how to believe my Lord, that the Assembly after what has passed, will frame Laws for the Establishment of Courts upon any admissible plan, until the success of the application to His Majesty shall be known. I think however, every practicable and probable means, are to be tried, to deliver the province out of its present dishonorable and unhappy state. I mourn incessantly over its fate, and wish, above all things, to see it restored to order, and felicity, and I live in hopes, that if my desire is not accomplished before, your Lordship will be pleased, in answer to this letter, to give in such light and instruction, as may bring it to pass.

The necessity of being very particular in the representations I have been obliged to make to your Lordship I humbly hope may

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apologise for this voluminous letter, the length of which really makes me ashamed.

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