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Letter from Josiah Martin to William Legge, Earl of Dartmouth
Martin, Josiah, 1737-1786
January 28, 1774
Volume 09, Pages 820-824

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

No Carolina New Bern, January 28th 1774.

My Lord,

I have the honor to transmit to your Lordship herewith the minutes of the Council of this Province, from the 28th June to the 22d September last, in which will be found, two Memorials of His Majesty's Attorney, and Receiver General, that ought to have been inserted in former minutes, but by some accident or neglect, were omitted.

I take the liberty to lay before your Lordship, abstracts of the Laws of New York & Pennsylvania, relative to Attachments, which have been brought to me, as evidence, that a mode of Proceeding, obtains in those Colonies, of greater latitude, than it seems to be the design of Government to admit here, by the regulations, your Lordship authorized me to propose to the Legislature of this Province, they will serve your Lordship as notes of reference to the Laws of those Provinces, which I presume, are deposited at large in your Lordship's Office, whence, your Lordship may be satisfied more fully of the extent and tendency thereof. In Virginia, your Lordship will see, there is a mode of Attachment, prescribed by an Act of the 18th year of His late Majesty's reign Chap. 1st intitled “An Act for the relief of certain Creditors” that affects non residents, as well as residents, in that Colony, the process however is in a Court of equity, and there is also another law of Attachment, in an Act of the 22d of His late Majesty Chap. 4th intitled “An Act for establishing County Courts, and for regulating and settling the Proceedings therein.”

Strongly as the Mode of Proceeding by Attachment according to the former practice here, is contended for on the ground of necessity. I find the Assembly insist upon it, the more strenuously, in the belief, that the restrictions of this Process, intended by Government, are calculated to deprive this People, of a means to recover debts, due from those of the other Provinces, which they employ against them, and which they will be left to exercise, after the Inhabitants of this country shall be divested of any reciprocal power of retaliation, to the manifest disadvantage of the latter, and if I could possibly

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suppose that, to be the design of Government I must confess to your Lordship, the discontent and resistance of the Assembly here, would appear to be much more defensible & reasonable than it does at present.

It has been lately observed to me my Lord, that a fraudulent Debtor, who should betake himself to his house (which in the eyes of the Law, is his impregnable castle) and avowedly with design to defeat his creditors, he would effectually secure his goods from Attachment under the restrictions of that process, intended by my instructions, and set them at defiance for that they could not in such case, make any due proof that he absconded &c, but only, that the ordinary process of Law could not be served upon him. That in England, the statutes of Bankruptcy, in cases to which they applied, admitted, under such circumstances, of the seizure of the Debtor's effects, and that an adequate remedy was highly necessary here, and had hitherto been found in the former Law of Attachment that permitted the seizing a Debtor's effects upon his concealing himself, so that the ordinary process of Law could not be served upon him. This opinion, it would therefore seem my Lord, hinges upon the construction of the words concealing, and absconding which to my understanding are nearly synonymous, or rather I believe, the latter word has all the signification of the former with respect to Persons, and may be used more extensively, indeed in my humble judgment, it applied to a debtor in the predicament above represented. For I conceive a man may abscond from his dealings with the world, and to the detriment of his creditors, in his own house, in this country, as much as if he removed to Japan. I should wish however, for your Lordship's sentiments on the matter. Many other cases, are also supposed wherein the Proceeding by Attachment, according to your Lordship's regulations, are not thought adequate to the necessities, and adapted to the interests of this People. But I have already troubled your Lordship with all that appears to me essential on this head, and I will now dismiss a subject, that has been productive of so much uneasiness, and embarrassment to me, and so great distress to this Colony.

The People, that are continually emigrating, in great numbers to this country, from His Majesty's European Dominions, it may be feared will increase the difficulty of executing any new plan of Government, for disposing of the Crown Lands here, if it be long delayed; for it is to be apprehended they will readily fall into the

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Practice of the People of the country, and sit down upon those Lands without Title, for which they may now indeed, plead a necessity, that was not heretofore the case, when the King's Lands were grantable, and afterwards, upon their example also, claim indulgence, if not right, under the robust Title of Occupancy.

It seems, my Lord, the particulars of the Division in the Council, that I suggested in my letter No. 19, concerning the passing the Bill for the Establishment of Inferior Courts alone, have by some means transpired, and the members who opposed it, are industriously held up to the Public Odium on that account, and as advisers of the prorogation; a measure which, I solemnly declare to yr Lordship, was entirely my own, but was certainly approved by those Gentlemen, upon the same principles, that I adopted it. That I may do justice to the members of the Council, who took different parts with respect to the Constitution of Inferior Courts alone, I think it proper to inform your Lordship, that Mr DeRosset, Mr Sampson, Mr McCulloch, Mr Dry and Mr Cornell were for passing the Inferior Court Bill alone, after the Council had thrown out the Superior Court Bill unanimously, and that the Assembly had declared its resolution not to depart from its own modification of it. Mr President Hasell, Mr Rutherford, Mr Strudwick and Mr Chief Justice Howard, thought with me, that the establishment of those Courts alone, was inconsistent with every idea of good policy, and opposed the Bill, and although there was a majority of one voice, in favor of it, yet I am persuaded, if your Lordship was acquained with the characters, you would not hesitate to admit it, that the weight of the Council preponderated infinitely on my side of the question.

Your Lordship will observe, that there is inserted, at the end of the Bill for establishing Superior Courts, that was rejected in the Council, at the last Session, and that I lately transmitted for your Lordship's information, a clause, repealing an Act passed in the year 1748, for settling the fees of the Chief Justice, and others, and making at the same time, no provision for that officer; who in the year 1770 agreed with the then Assembly to relinquish his Fees, in consideration of a salary, at that time allotted him, by an Act of the General Assembly, of six hundred pounds Proclamation money per annum, and an allowance of fifty pounds for every Court he attended, supposing which to be the twelve held in the year amounted to six hundred pounds more from the latter Provision. Nothing has accrued to the Chief Justice since the expiration of the Court Law in March

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last, and the Act appointing him a salary will expire on the twelfth day of June next, when, if in the meantime no Establishment of Courts be made, by Law, His Majesty's Chief Justice will have no other support than the Crown Salary, of £70 sterling per annum, chargeable on the revenue of quit rents, of which he has not received a shilling for some years.

It is a strange Policy my Lord in this Country, to hold this important Officer in such a state of dependance on the Assembly, by making only a temporary Provision, for his support, from time to time, indeed the present Assembly in its message to the Council of the 20th of December last, speaks with great liberality of intention, towards the Judges, provided His Majesty shall be pleased to appoint them during good behaviour, but whether that measure shall or shall not be adopted by Government, I humbly conceive it is highly worthy its consideration to put the Chief Justice at least, upon some good and independent footing, suitable to the dignity and consequence, and toil of his Office, which last, is in this Country peculiarly great.

It appears by the Journals of the late Session of the General Assembly that the House refused to admit the Member elected for the Town of Tarborough, in consequence of a Charter granted by me to that Place; and a Writ of election regularly issued, as being contrary to a Division of the Bath Town Act, passed in the year 1715. I confess my Lord, it seems to militate against that Law, which however does not restrain the Prerogative royal; and it was by virtue of that Power, the Charter was granted by me, with the advice of Council, and I presume, it may on that right of the Crown, be supported. The Act alluded to was not in contemplation at the time; nor did I ever advert to it with respect to this matter, until the Assembly's Proceeding called my attention to it. The Petition of the Inhabitants of Tarborough, was introduced by Mr McCulloch a member of the Council, who attested the facts it set forth, which the other assisting members of the Council (Mr Chief Justice Howard and Mr Strudwick) as well as myself thought sufficient grounds to grant the Charter. Considering the embarrassments of the time, I did not think it proper to make this a new matter of controversy, with the Assembly at the last Session, nor shall I enter upon the discussion of it hereafter unless your Lordship shall think it expedient.

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Finding that the pretentions of the Town of Beaufort, to representation in the Assembly, are not well established; and that the Petition of its Inhabitants, that I referred to your Lordship, was only calculated to serve the purpose of a particular person, who wanted a seat in the Assembly, I have forborne to issue a Writ of election to that Town, which conduct I hope your Lordship will approve.

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