Memorandum from Lewis De Rosset to Josiah Martin concerning an act of the North Carolina General Assembly concerning courts
De Rosset, Lewis, ca. 1724-1786
Volume 09, Pages 975-977
To His Excellency, Josiah Martin, Esquire, Captain General, Governor, &ca
Your Excellency has required that I should assign the reasons which induced me to recommend to you to ratify the Bill for establishing Superior Courts passed this Session through both Houses of Assembly.
The distressful situation of this Province for want of either a civil or criminal Jurisdiction so sensibly and severely felt by the Inhabitants of this Country, and so justly and pathetically described by your Excellency in your Speeches to both Houses of Assembly, evinces the necessity of establishing Courts of Judicature. This I was of opinion could only be effected, by ratifying the Bill above mentioned, as the representatives of the People had absolutely refused to adopt any better plan for the establishment of Superior Courts than that proposed by the Bill rejected by your Excellency. The Council Journals will sufficiently testify that the Upper House used every means in their Power to prevail on the Assembly to alter that Bill, agreeable to your Excellency's wishes, but on their refusal that Board judged it more expedient to pass the Bill as it was, than to suffer the Country to remain longer in the state Anarchy & Confusion
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to which it has been subjected for these twelve months past, and when I reflected that this Bill was, although ratifyed here, still subject to His Majesty's royal disallowance, I determined to advise your Excellency to give your assent to it, as the only possible expedient to restore the fallen credit of the Country, and further Sir, as far as I could collect from that part of a Letter from the Earl of Dartmouth which your Excellency communicated to the Council, a principal objection to the Act passed in March 1773, with a suspending clause for establishing Superior Courts, which His Majesty did not approve, was that it did not restrict the granting Attachments to cases where the cause of Action originated in the Country and this Provision I conceive was made by the Bill you rejected; another cause assigned for the royal Disallowance of the Act above referred to I ever understood was owing to the extension of the Jurisdiction of the Inferior Courts to fifty pounds, and the restriction of that of the Superior Courts to take cognizance of no less sum but in certain cases, whereas by the Bill offered to your Excellency this Session, a right was given to sue in the Superior Courts for any sum above ten pounds except in those instances where the Parties both resided in the same District, and in that case suits might be commenced for twenty pounds. This was a Provision calculated to prevent vexatious prosecutions for trivial sums in the Superior Courts & designed to guard poor debtors from the heavy Costs that would accrue on being sued in those Courts by ill disposed persons, who under the sanction of that Law might greatly oppress such as might be inconsiderably indebted to them, and is a Provision that has ever been made since the first establishment of Superior Courts under Governor Dobbs' Administration, so that I conceived Sir there was a material difference between this Bill and that above referred to disallowed by His Majesty, besides I judged that if your Excellency had assented to the Bill it would have had a tendency to quiet the minds of the Inhabitants of this Country who generally at present appear from their Instructions to their representatives not at all disposed to come in to the measures proposed by your Excellency, and when the warmth of opposition had subsided it is reasonable to suppose that in a better temper such a Law as would have been satisfactory to Government, if this had not proved so might have been more easily obtained, but as this is the third Session your Excellency has met the Assembly since the unhappy contest between the different Branches of the Legislature has subsisted, I did think
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and still do, that His Majesty's service would have been more effectually promoted by your Assent to the Bill than to suffer the Country to remain longer in anarchy and confusion. How far the Laws for establishing Courts of Oyer and Terminer and Inferior Courts which your Excy
has since passed will answer this purpose I cannot foresee tho' I am hopefull they will have many effects, but until a Superior Court Law is passed that protection derived from a regular system of Laws to the Persons and Properties of the Inhabitants of this Country is left on a very precarious and uncertain footing.
The Act of 1748, so far as relates to Fees or Suits both to the Chief Justice and to the Clerks of the Courts has long been considered as injurious to this Country, and the uncertainty of that Law and the extortions practiced under it was one of the principal causes assigned by the Insurgents for their taking arms against Government, and which cost the Country near sixty thousand pounds to suppress The fees of the Clerks have been explained and ascertained with precision and the Chief Justice provided for by a salary equal if not superior to what is allowed that Officer in any other Colony on this Continent.
This Provision I consider much more honorable and more becoming the dignity of the Office, than the precarious collection of trifling Fees from suiters. It is true that the Law granting this Salary is limited in its duration, but the Assembly have given the strongest assurances of their intentions always to make suitable and honorable Provision for that Officer, and from all these considerations I am induced to think that in this instance nothing can be contrary to the spirit of any of His Majesty's Instructions that I have seen.
I trust that my avowed loyalty to my gracious Soverign & His illustrious House, my abhorence of republican principles, the zeal I have constantly manifested for the support of Government even to exposing my life and property in its defence, and my constant application and unimpeached conduct for above twenty one years at a great expense to myself in discharge of the important Trust reposed in me by the Crown are sufficient justifications of the purity of my intentions.
I have the honor to be &c.,