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Letter from Alexander Elmsley to Samuel Johnston
Elmsley, Alexander, 1730-1797
May 17, 1774
Volume 09, Pages 995-1003

[Reprinted From Jones' Defence of North Carolina, P. 112.]
Letter from Alexander Elmsly to Samuel Johnston.


London 17th May 1774.

Dear Sir,

“I have your several favors covering your order on Bridgen & Waller, and ordering a suit of law [lace] for a friend of Mrs Johnston's. With respect to the first, all the purpose it has answered is, a new order to Mrs Strudwick to pay you that money. This manœuvre you can easily see through; it is not so easily reconciled, however, to the principles which these gentlemen make profession of, and for want of which your neighbor C. Pollock has, in my hearing, been so often the subject of their abuse. The fact is, they acknowledge the receipt of the money, and are ready to account for it; but Strudwick is largely in their debt, and they think this a good opportunity to reduce the amount. If this expedient miscarries, you must write to them to pay peremptorily, and I doubt not the money will be forthcoming, as the Scotts say. By this ship the lace is sent to Mrs Aitcheson's care, who will contrive it to you instead of £7 7s.; however, Mr Palmer, Mrs Do., and my Rib, after consultation, are of opinion unanimously that Miss Catchcart has a right to wear a suit of lace worth at least one half a guinea a yard, and so the whole together, i. e., the lace and something else, the name of which I have forgot, costs you £10 1s.; £9 to Bridgen & Waller, lace merchants, for the materials, and £1 1s. to a milliner for putting them together.

“I think your Assembly to blame and your Governor also, and am sure I'm not mistaken; these are my reasons; Governor Dobbs in his last will gave a legacy of £2,000 to his wife, and inter alias appointed his sons, Conway and Richard, executors. Conway I verily believe received moneys belonging to the testator, both here and in Ireland. Richard I sincerely believe never received a shilling

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here, there, or anywhere else; but having, as well as the other, effects in your Province, an attachment was issued against them at the suit of Mr. Nash, and, before defence could be made, the plaintiffs had judgment; the defendant soon after, however, procured an injunction, which your Court of Chancery thought proper to make perpetual. From this decree Mr. Nash appealed, and last Thursday the decree was reversed by the Privy Council, because of your attachment law, which they said they could not get over, although Sir Jonathan Welmot, late Chief Justice of the Common Pleas, thought it so hard a case upon young Dobbs, that he gave it as his opinion, no act of Assembly ought to have the force of a law till revised and ratified in England.

“My next reason is within your own recollection. P. Larkin of London became bankrupt, having effects in North Carolina; Alderman Rossiter and a Mr. Pritchard of this place attached, as did a Captain Richardson of your Province, but who was of Jamaica at the time of bankruptcy, although an inhabitant of England when the debt was contracted; the attachments of the two Englishmen were defeated, the American had his money, and this expressly agreeable to the determinations of the judges here.

“My other reason affects myself. When Bogle and Scot stopt payment, their creditors were called together to fix upon a plan for liquidating their affairs. The single question was, whether the commission of bankrupt should be sued out against them, or whether trustees should be named, to take the management of their affairs into their hands.

“Every creditor present except myself, was for appointing trustees, because by that means the expense of a commission would be avoided in the first place, the disgrace of it in the next; and in the third place which was of more importance, many of their creditors were possessed with bills and bonds with security, and were also creditors on open account, and, in case of a commission taking place, would have a right to receive of the security, and afterwards divide against the bankrupt's estate, as if nothing had been received on the bonds and bills, till they should have received their whole debt; by which means their simple contract debts without security would be in fact covered by the security on the specialty debts. This reason had determined all the creditors present not to sue out a commission of bankrupt; but six weeks having elapsed from the time of their stopping payment, and it appearing that the

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greatest part of their effects were abroad in America, and consequently subject to your attachment laws, which would take place of an assignment to trustees, and which we had no other way of avoiding but by taking out a commission, we were obliged to come to a calculation, whether the open account creditors would lose more by letting such as were creditors both by bonds with security, and open account also, have their full debts paid, or by running the risk of such creditors as were not present having during the six weeks, ordered attachments in America; and upon finding that all the Scotch and many considerable English creditors had not attended the meeting, although advertised, and suspecting the reason of it, upon my proposal it was unanimously agreed to make bankrupts of Bogle & Scot, although by that means sundry creditors are certain of having their full dividend, who otherwise would not have received above 17 or 18s. in the pound; but as their debts were not near so considerable as those of the absent creditors, whom we supposed absent because they had taken steps to secure their debts otherwise, of two evils we chose the least.

“With respect to attachments in England, I am able perfectly to inform you of the nature of them, having since my arrival in London, defended no less than seven of them, not as an attorney, but as the agent of a gentleman in Scotland, pro hac vice. 1st It is only in the city (not one half) of London, in Bristol, and I believe York, or some other old town, that attachments lie by custom. I know not the custom of the two last places; but in London the practice is, that no attachment takes place except where the cause of action arises within the city; that if affidavit of the debt is not made by the plaintiff upon suing out the attachment, it may be set aside on entering common bail in the office; and in no case can the garnishee be compelled to answer, unless he voluntarily, to oblige the plaintiff as his friend, comes into Court and discloses the amount of the effects in his hands; but if the plaintiff can prove that, at the time of laying the attachment, the garnishee was either indebted to the defendant or had effects of his in his possession, he is admitted to do it, and such proof is as good as the garnishee's confession.

“These are the principles of the attachments in London, you may depend on it, and it was upon them that the last instruction to your Governor was founded; of this I am certain, because old Mr McCulloh in the absence of his son called upon me as soon as he received his dispatches respecting this matter, and requested my advice on

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the subject. I readily took a slip of paper and drew up a sketch of an instruction which he showed to Mr Jackson, Counsel to the Board of Trade, and which he afterwards told was perfectly approved of; and we never doubted that it would be sent out to the Governor, in statu quo, nor knew I anything to the contrary, till I read your Journals, and found that Jackson, as I suppose of his own head, had added that the plaintiff should swear that the defendant's absconding was in order to avoid payment of the debt. This he now confesses and justifies, upon the rule of the Court of Chancery in England, which has adopted that form in certain proceedings against absentees; but he says, as I do, that it was sufficient for your Governor to have attended to the substance of his instruction, in which case he ought to have dispensed with these words, for which the Board would have been obliged to him.

“As to the Assembly, I think them wrong in contending for an attachment law in the same extent as before. What we want here is principally that we and you should be on a footing, that if one of our merchants fails, his English and American creditors should receive the same dividend; whereas, as things stood under the late law, the American creditor who could find effects in that country, had his whole debt, when the English creditor often got little or nothing. We also want that even an European creditor should not have power to attach in America, because by this means, unless the debtor is made bankrupt, it often happens that the creditors who are merchants and have correspondents abroad, have greatly the advantage of other people; and it was to avoid this inconvenience that the expedient of obliging the plaintiff to swear that the cause of action arose in the province was thought of.

“H. McCulloh tells me that there is a new instruction gone out or made out. From what he mentions, it differs only from the last in admitting an attachment where the cause of action may happen to arise in Virginia or South Carolina, and striking out the clause that obliged the plaintiff to swear that the defendant had absconded in order to avoid payment of his debt. If this is the case, I think it a foolish affair, and that it may be of some more service to Virginia than before, and that is all the difference; for as to the other circumstance it is nothing, had your Governor rightly understood the matter, being mere form only, and which he surely ought to have dispensed with.

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“Before I finish the business, give me leave to mention to you, that it was my idea when I came to Carolina, that there was nothing in your laws to warrant an attachment against the estate of a person who had not some time or other been resident amongst you; an original attachment certainly could not lie against him, because he neither conceals, absconds nor absents himself, which the form of your attachment makes a sine qua non. An attachment on mesne process, I think ought not to affect such a debtor, because your Sheriffs are on all returns to set forth the truth of the case, which is here that the defendant is no inhabitant, in which case no attachment can issue. What inclined me to think in this manner was the practice in Virginia where the laws were the same with yours in respect to attachments, but where there is a particular Act of Assembly respecting persons never resident in the Colony, which, if I have not forgot, puts all creditors on a footing. This law you have not, nor anything like it, the construction you put on the Court Acts supplying the place of it.

“I am told, your agent wrote out, that your Governor would receive an authority to consent to an enlargement to the jurisdiction of the County Courts. I know not what foundation he had for writing so, because it was easy to see at the office what instruction had gone out; and I am well assured that, had it not been for your being in possession of a larger jurisdiction for some years past, the County Courts would have been put on the same footing as in England. I believe the truth is, no inquiry was ever made by the young gentleman after his return to England, trusting to the exertions of his father in his absence, who had labored this point with Mr. Jackson, and not having in express terms a denial, took it, I believe for granted that he would recommend the matter to the Board, and advised his son accordingly. This inclined him to hazard the flattering letter wrote to the committee, and which I am told was one reason, amongst others, for suffering this Act of Assembly to expire. Betwixt you and me, the old man is the best agent of the two. As this office is now vacant, and it is impossible that your Province in its infant, unsettled state, can be without an agent in England, I would have you sincerely think of your old friend here. The grand difficulty will lie with the Council, but if ways and means could be fallen upon to interest the Governor, I have no doubt a majority of that board might be easily secured to vote as he might direct them. The grand objection that

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lay in our way formerly is now no more, (the opposition from the Southern men;) as the seat of government is out of the question, it is become indifferent to them whether the agents are from the South or the North. If you think this business practicable, perhaps it may contribute somewhat to the carrying it into execution should Mr Barker write to the Chief Justice Cornell, and some other principal or popular characters, which shall be done if on reconnoitering the ground you think well of it. American affairs have engrossed all the serious part of the attention of Parliament this session; the result of which is, that four Acts of Parliament have passed respecting that part of the world. I had almost said of the British dominions. By the first the harbour of Boston is shut up till a compensation is made to their Indian Company for their tea, and till the inhabitants discover an inclination to submit to the revenue laws, after which the King, by and with the advice of the Privy Council, is empowered to suspend the effect of the Act.

“This law, we imagine, will save the Bostonians the trouble of entering into new agreements against importing goods, as being out of their power while the Act continues in force. But we are not certain that it will be followed by the same effect in the other principal ports, they being left open, though not less criminal, except in point of overt acts, than Boston. But I suppose the administration thought the whole too much to encounter at one time.

“The next Act is for taking away the charter of the Massachusetts Bay; hereafter the Council are to be appointed by the King, as in the Southern Provinces, and in certain cases the Governor is to act without their consent and concurrence. The town meetings, except for the purpose of elections, are declared unlawful, and some other new regulations established.

“The third act enables the governors in case of an indictment preferred against any officer of the Crown, either civil or military for anything by him done in the execution of his office, to suspend the proceedings against him in America, and to send him home for trial in England. This law, I am told, the officers of the army insisted on for fear of being prosecuted by the civil power, either as principals or accessories to the death of any person killed in the field of battle, in case things should come to that extremity.

“The fourth and last law respects quartering the soldiery. I have not seen it, but suppose it is calculated to obviate in future the construction put upon the old one, by the people of Boston, in

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their town meeting, viz. that Castle William, situated three miles out of town, should be taken to be barracks in the town, and of course excluded the pretensions of the army to quarters in the town, even though the purpose of sending soldiers should be merely on account of the commotions and disturbances in the town. Lord Chatham has never appeared in his place in the House of Lords during this winter. Cambden and Rockingham assisted by the Duke of Richmond and some others out of place, form the present opposition, and of course voted against these measures. The Duke of Richmond, in particular, I am told, spoke against them with great acrimony, wishing that the Americans might rebel openly; but they were always out voted five to one in the lower House. Lord North is as absolute as ever Pitt was, and most people think as deservedly; even Barre voted against the Americans on the Boston Port Bill, and made a long speech on the occasion; as did Lord George Sackville on all of them; and yet these are two of our staunchest patriots, in other words, strongest opponents of the ministry. With respect to the sentiments of the public in general, they are not favorable to the Americans; most people think it unreasonable, that they should be taxed without their consent; but they think it also dangerous to allow the sovereign to have more parliaments than one, at least independent of that one, and think as I always did, and said, that the king of England, as King, can have no subjects that are not under the control of the Parliament of Great Britain; but then on the other hand, nineteen in twenty of all the sensible people in the kingdom think, and think very seriously, that as the inhabitants of the Colonies are no longer an assemblage of needy vagrants, but are become a numerous body, respectable for their importance in the State, and bidding fair in a little time to equal in point of numbers those of the mother Country, which decline in proportion as they increase, the ministry ought either to waive all pretentions to taxing them, or to admit a reasonable number of the Representatives for the Americans. Were the people on your side of the water to put matters on this issue, they would find many more friends in England; but as things stand at present, when this is urged for you, the ready answer is, that you declare you will not be represented, ad quod non potest responderi.

“Saxby, the Receiver of South Carolina, has resigned, and Irwine, who gave him some trouble about your office, is appointed in his

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room. James Murray, would you think it? has accepted of Irwine's place in the Customs of Boston; it is that of an inspector, worth very little to a young man, and still less to an old one, who has filled the most respectable place in a Province. I fancy the old man is in necessity, else he would not have encountered so much drudgery at his time of day. I saw Col. Lawrence lately; he talks of returning soon, but says he shall first pay me two or three hundred pounds for you.

“Having now, my dear friend, pretty fully gratified your curiosity respecting everything that may either concern yourself or the public, you will give me leave to add a few lines concerning myself.

“When I left my power of attachment with you, I told you that Andrew Millar and I had agreed that all money you or he might receive of mine should lie in his hands for three years, he paying me interest at the rate of five per cent. for two years and a half only. I had a letter from him lately, in which he appears perfectly to recollect this, but seems to have forgot that the money was to be remitted at the Virginia exchange, making an allowance of twentyfive per cent. to bring the product into Virginia money; he charges thirty-three and a half. When you see him I shall be obliged to you to put him in mind of this matter. I do not want the money, but the sooner his mistake is pointed out to him, the more probable it is that he will recollect himself and correct it; perhaps if it is hinted to him that as he was to have the money six months for nothing, and was afterwards to pay but five per cent. instead of six, it is to be supposed some equivalent or other must have been stipulated in return he may call to mind our agreement; but I would not have any bickering about the business.

“The other thing respecting myself is only a repetition of part of one of my late letters. Mr McCulloh has often been talking to me of buying the 1,000 acres of land he got for his vote in Council from Pugh & Williams. I have never listened to him, but if I thought it good land, and that 2,000 or 3,000 acres more could be had contiguous to it at an easy rate, I believe I should be tempted to treat with him. Will you then inform yourself what sort of land his is, and at what price the above addition may be made to it, and advise me accordingly. I have now three boys to provide for; one of them shall take one of your girls off your hands, if she cannot

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dispose of herself better. I am with compliments, for self and company, to all your family,

Dear Sir, your affectionate
ALEXANDER ELMSLY.

The King of France died last week of the small-pox, aged 64.