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Letter from Josiah Martin to William Legge, Earl of Dartmouth
Martin, Josiah, 1737-1786
September 01, 1774
Volume 09, Pages 1050-1061

[B. P. R. O. Am. & W. Ind.: No. Carolina. No. 222.]
Letter from Governor Martin to the Earl of Dartmouth.

North Carolina, New Bern, September 1st 1774.

My Lord,

I have the honor to acknowledge the receipt of your Lordship's dispatch No 10 in which your Lordship is pleased to signify his Majesty's gracious approbation of my conduct under the difficulties I have met with from the Assembly's unwarrantable denial of the

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most just, essential, necessary and acknowledged powers of the Crown and its resistance of the most salutary proposition of Government, and this mark of his Majesty's Goodness and condescension is at once my Lord the highest consolation and satisfaction I can enjoy and the most powerful incentive to me to persevere in the performance of my duty in the manner that may best and most effectually recommend me to the future approbation of my Royal Master.

It is now out of doubt, my Lord, and therefore I am warranted to assure your Lordship that all the opposition to the measures of Government which has appeared in the Assembly of this Province since the first communication of his Majesty's instruction relative to attachments hath arisen from the interested views of a few individuals who have had the baseness to aim at the defeat of the powers of Government most conducive to the interest, peace and happiness of the community in order to serve their selfish purposes, and I am sorry to say they have needed no better address to gain abettors to their pernicious designs than to persuade the uniformed majority of the House of Assembly that the measure they found it convenient to oppose was illegal, an undue extension of the Crown's prerogative or injurious to the liberty of the subject, which assertions unsupported by the shadow of reason or argument owing to that fatal jealousy and proneness to ill suspicion of Government manifested upon all occasions throughout this continent are implicitly swallowed, and like the magical wires to the figures in a Puppet Show, move the people according to the will of those who are mean enough to practice upon their ignorance and credulity, and in as much, my Lord, as the people of this Country surpass the rest of the Americans in these respects they are so much the more exposed and liable to be wrought upon and misguided by the artifices of designing men.

The alterations of the law of attachment proposed by Government, my Lord, have been more a specious than real ground of the opposition that has been so observable in the Assembly, from the time that subject was broached it served for a colour and pretence, but the genuine cause of it was the disappointment of two candidates for the Treasurers office which happened at that period. It is enough to clamour against Government as I have before observed, my Lord, to acquire an interest in the Assembly and among the people of this Country in general, and as that branch of the Legislature has, long fatally to the policy of this Country, usurped the

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nomination of those Officers, it became the only game of the disappointed Candidates to establish an Interest there against a new election to be made there at the end of two years when the Law passed for the appointment of Treasurers would expire, to effect which, no device or expedient has been left untried. The proposed amendments in the law of attachment they first made subservient to their sinister purposes, and next they monstrously employed every engine to render obnoxious the Courts of Criminal Jurisdiction established under the authority of the King's commission to me, (although they have confessedly kept the Country in a state of peace and tranquility, and done the most eminent services) not on the principle of their being illegal, for I have reason to believe, my Lord, that some of the promoters of those measures never thought them so, notwithstanding that was the avowed ground of their opposition, but to draw odium and reproach upon Mr Caswell, one of the late appointed Treasurers and a man of the fairest and most unblemished character in the whole country, who had acted as a Commissioner of Oyer and Terminer under my appointment, to the universal satisfaction and contentment of all people whose interest they apprehended would be strengthened in the Assembly by his services in the character of a Judge, which were so highly applauded and might avail him to their detriment at the next appointment of Treasurers. Mr Caswell therefore was to be sacrificed upon the very ground where popular applause was erecting monuments to his honor, and this was only to be effected by impeaching the legality of the Powers under which he had acted with reputation to himself and so great advantage to the community. The common artifice of clamouring against prerogatives was played off accordingly with the usual effect. The leaders of the faction hurried for the time the current of popularity against Mr Caswell, and by the same means in the same moment, prescribed justice for the Country. This, I most firmly believe, my Lord, was the true ground of opposition to these measures, and that the Courts of Oyer and Terminer would never have been brought into question, if, by chance, Mr Caswell, the fittest man in the Country, had not acted as Judge in them and been one of the Treasurers at this very conjuncture. The success, however, of this last most wicked achievement, my Lord, has been short lived. I have at length, I think, not only had the happiness to defeat it, but I have brought conviction upon the understandings
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of men in general here upon this subject in spite of the dangerous machinations of opposition.

Nevertheless My Lord I am unwilling to undertake that sober reason will govern the Assembly hereafter upon this point since I have known that body led to sacrifice everything to the intrigues of faction and that I am convinced they aim at the retrenchments of the prerogative by all means notwithstanding their own interest and security is concerned in the due support of it; it is a matter also My Lord very doubtful to me whether the interest of this confederacy in the Assembly may not be sufficient to embarrass the measures of Government so long as the leaders of it find an interest in hanging together. It is true it is composed of parts that have been evermore heterogeneous and discordant to the last degree in their Politics which in the Northern and Southern districts of this Country have been immemorially and uniformly adverse as your Lordship will find as their local situations are opposite, and they are now connected only by the accidental competition of a leader in each for the Treasurerships: perhaps success arising out of their union on this point may confirm it or it is possible that this contenting being over former jealousies and animosities may take place among them. Their conjunction however is extremely formidable to the interests of this Country for the weight of seven Counties in the Northern district four of which namely Currituck, Perquimans, Pasquotank and Chowan send five Members each to the Assembly and the remaining three Tyrell Bertie and Martin send eight among them making in the whole twenty eight votes in the Assembly besides one for the Town of Edenton which constantly draw together and will preponderate whatsoever scale it is thrown into and are always led by a man or two; they are now under the absolute guidance of a Mr Johnston who is Deputy Naval Officer and was one of the Clerks of the Superior Courts while they existed in this Province but who, under the prejudices of a New England education as I suppose, is by no means the friend of Government he ought to be having taken a foremost part in all the late oppositions in which it is probable if not certain he has been influenced also by his aims to the Treasuryship for which he was a candidate at the last appointment without success. This weight in the Representative body I say My Lord joined with the Southern Interest which at present supports a Mr Ashe as a candidate for the Treasuryship of that district whereof he was deprived his friends say very

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unjustly by the Assembly at the late election I think bids fair to answer the purposes of their combination at this time, and I should be happy if I could persuade myself it would not be productive of further and worse consequences, but considering how prevailing a passion the love of power is in man abstracted of all reasons for the suspicion of particulars and how probable it is that success attending this accidental union of interests may bind them together on future occasions, every embarrassment I think is to be apprehended from the powerful inequality of representation that has been hitherto allowed to the Northern counties above named, I confess my Lord it appears to me a capital and radical error and misfortune in the polity of this Country the ill tendency of which is obvious and whose ill consequences it may be feared will be felt more and more as long as it lasts. It is become very apparent to the Inhabitants of the Western Country who must be ever governed by the conjunction of the Northern and Southern interests although that district is often times their extent and four times more populous; for all these reasons My Lord and many other considerations that certainly grow out of them I think it my indispensible duty to his Majesty and this Colony to recommend to your Lordship's consideration the expediency of reducing the representation of the Northern Counties to the level of the other Counties of this Province which send but two members each to the General Assembly except where there are Towns. I am not ignorant my Lord that this very point was in discussion before the Lords of Trade in the year 1754, when no alteration was made upon it as I have been informed owing to the misrepresentations from hence, but however that may be my Lord it is in my humble judgment an amendment in the Policy of this Province so fundamentally and essentially necessary to its welfare and happiness that I cannot help urging it in the most earnest manner to review and reconsideration.

From the foregoing state of things here your Lordship will observe that the power long assumed by the Assembly over the Public Treasurers is the first Spring and source of the present cabal and opposition which is cherished, supported and made powerful by the influence of a competitor for office over the representatives of the northern Counties, and I submit to your Lordship whether it will not be as expedient if it can be done with propriety to vest in his Majesty's Governor the appointment of Treasurers here as to retrench the unequal representation as I have humbly proposed; I will take upon me to

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say it will be next to that an improvement the most conducive to the real interests of the Country and of Government.

Your Lordship will not I daresay be surprised to hear that the People of this Colony have followed the example of the rest of the continent in caballing and forming resolutions upon the late measures of Government with regard to the divisions in the Colony of the Massachusetts Bay the readiness with which the intemperate declarations of the Virginia Assembly were adopted re-echoed here will have shewn your Lordship that this people are but of too congenial disposition; what system the other Continental Assemblies have formed by their committees of correspondence which your Lordship must know have been appointed I cannot tell, having never understood that their proceedings have transpired more than those of the Committee here of which nothing appears upon the Assembly's Journal but the resolves entered into on the first establishment of that Committee and that letters had been received from the Committees in the other Colonies the contents of which are held secret. Whatever measures may have been taken the combination is assuredly at least indecent and mysterious.

The first intimation that I received except from vague rumour of the measures lately taken here was from the enclosed printed letter of a Committee at Wilmington to the Freeholders of Craven County where my residence is fixed, whereupon I immediately ordered the Council to be summoned that I might advise with them on the measures proper to be taken to discourage and prevent such unlawful and indecent proceedings. Your Lordship will see by the minutes of that Board herewith transmitted that on the 12th of last month I laid the matter before them and that I issued with their advice a Proclamation the next day, apprehending however that under the total inability of Government to enforce even what common decorum required, The proposed meeting of Deputies at New Bern the Seat of Government that was ultimately agreed to be the place of rendezvous would be accordingly held, and considering it would be my duty to be at hand to discourage their proceedings as much as lay in my power and to take such measures as circumstances should require for the maintenance of order and Government I resolved there to wait until the time of meeting was past although the very impaired state of my health made it highly expedient to remove at that season from so unwholesome a situation whence at the very time I was compelled to send my family to New York as the only chance of preserving

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it from destruction. I thought it proper also My Lord to require at this crisis the attendance of the Council that I might want no advice upon the occasion that it should be my duty to take. The minutes will show your Lordship that Mr President Hasell Mr Rutherford Mr DeRosset Mr Sampson Mr Dry and Mr Cornell only attended, Mr McCulloch and Mr Strudwick being prevented by sickness and Mr Howard absent with my leave at Rhode Island on his private business. Your Lordship will find that on the 25th of last month I apprised the Council of the actual meeting of the Deputies at New Bern pursuant to appointment and that I advised with the Board on the conduct I should pursue on the occasion which recommended no further measures. I rest satisfied indeed my Lord that under the important circumstances of Government none effectual could be taken and so far concur with the Council, but I am sorry at the same time to be obliged in duty to report to your Lordship that although the Board had professed before me the highest disapprobation of this meeting of the people that consisted for the most part of the representatives in the General Assembly for the purposes that were declared and had unanimously advised me to discourage it by proclamation issued on the 13th of August, yet the Members although repeatedly invited and persuaded by me to reside at my house and to hold themselves abstracted from the Deputies, met upon such unlawful business (which I certainly did more out respect to their offices than their own merits) they were so far from keeping up even the appearance of supporting the King's Government by this meeting so flagrantly insulted and set at naught that they mixed with the Members of this Cabal and by their whole deportment void of decency and decorum virtually contradicted the advice they had given me as counsellors and rather abetted and encouraged the measures they had to me condemned. This is a conduct My Lord which I own I can never reconcile to their duty to his Majesty and which appears to me utterly inconsistent with every idea of honor and of principle. In this relation however My Lord I must except Mr President Hasell who lived with me and acquitted himself as upon all other occasions like a truly good and worthy man and faithful servant of Government.

Mr Isaac Edwards the Deputy Auditor who at his first appearance on the political Theatre took the factious part against Government and discovered the most monstrous and unparalleled ingratitude to me as I have before mentioned to your Lordship has been the most

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zealous and forward in promoting the indecent Cabals that have been formed here. He was appointed as your Lordship will observe by the enclosed hand Bill one of the Committee for the Town of New Bern for which he made interest as I understand he did most strenuously at the general meeting there to be a Deputy at the congress to be held at Philadelphia but without success although he took a probable course to ensure it by urging singly and alone that the Cabal should pass heavy censures upon my proclamations before alluded to upon which he bestowed very illiberal reflections but his proposition was on all hands rejected. He lets no opportunity escape in short to shew his spleen and enmity to Government one instance of which that was reported to me not long ago I thought it proper to make the subject of enquiry in Council and I beg leave to refer your Lordship to the minutes of the 25th day of July for the particulars of it; but the Magistrates whom I called upon to give testimony upon the occasion as little respectable or cordial towards Government as the Deputy Auditor or restrained by apprehensions of betraying their own want of regard to decorum in their Court affected total ignorance of Mr Edwards' misbehaviour; but I think it appears upon the whole from the Testimony of Mr Ormond the Deputy Attorney General whose assertions however are no less curious than absurd that Mr Edwards treated the commission to which the enquiry relates indecently and that he studiously brought it into question in a case to which it did not apply as also that he perswaded the Magistrates to condemn it because the Assembly had most unwarrantably and absurdly determined Commissions of a nature totally different to be illegal; the very allusion to which carries his malignant and insidious design to undermine the authorities of Government as well as the littleness of his mind and understanding beyond anything I can offer to your Lordship; better evidence however is not wanting of his misbehaviour in this instance, the Clerk of the Court from whom my first information came as well as Mr Palmer collector of the Customs at Port Bath being ready to make oath to the particulars of it. The Commission in question My Lord was to empower the Magistrates of Beaufort County to qualify the Coroner to enable him to take the Poll at the ensuing election which he is impowered to do by Law in case of the absence or default of the Sheriff, and it happened at this time it was contended by the Assembly that according to the Sheriffs Law of this Country there was no such legal officer then in the Province as by the suspence of the
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County Courts no persons had been recommended agreeable to the provisions of that Law for the last year; this Act as I humbly conceive is certainly authorized by his Majesty's Commission militates against no Law of the Colony as none prescribed any particular mode of qualifying the Coroner who is appointed by the Governor and it was calculated for the ease of the Country for an indispensible public purpose and could possibly do no injury, but that your Lordship may judge of its merits and demerits I enclose herewith a copy of the Commission so idly attacked by Mr Edwards. I have already represented to Mr Cholmondeley the Auditor General the misbehaviour of his Deputy and recommended a proper person to succeed him, indeed I should have thought it my duty to supersede him on his first outrageous resistance of the measures of Government if he had not mixed in his opposition personality to myself which consideration restrained me lest such an act should be imputed to private resentment of a [character] that never excited in me any other feeling than contempt rather than to the true motive of my regard to the true interests and honor of Government. It is however my Lord so great a discouragement to the few firm friends of Government here to see its own servants fly in its face with impunity that I shall think it necessary since he has taken openly and warmly a part in the late Cabals here to shew that mark of just indignation at his conduct as soon as he has finished the business of the Auditors office for which he is already paid and I think your Lordship will approve of such a step considering the extreme weakness of Government here and the ill tendency of winking at such a behaviour in one of its officers both with respect to its friends and opponents.

I most heartily return your Lordship's congratulations on the birth of the last Prince, and sincerely rejoice in an event so truly joyful to His Majesty's Royal Family and all his faithful subjects.

I much fear it will be long before I shall have it in my power to answer fully and satisfactorily as I wish the enquirys accompanying your Lordship's circular letter of last year. I have not yet been able to procure the necessary information relative to the Trade and exports and imports of this Province from all the several custom houses, and I almost despair of getting at the number of the people, the measures I have taken upon that head being by some opposed under the dread of bringing down judgment upon the Country, by others under apprehensions of its being intended for a ground of taxation and by many I believe only because it is required by Government.

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However I shall spare no pains to obtain all the information I can on the several subjects of your Lordship's enquiry.

I will not take upon me to say, my Lord, how far the form of the oath to be taken by Plaintiffs in cases of attachment and other regulations allowed by your Lordship's letter No 10 may obviate the difficulties that have apparently obstructed the passing a Superior Court Law, but I am inclined to think the Assembly will not easily recede from their demands until they know the result of their own application to the Lords of Trade upon the subject and perhaps not until a new appointment of Treasurers, that cannot happen before March next, shall have answered or defeated the views of the present opposition. I can see upon reflection, my Lord, a thousand reasons for asserting in the meantime the rights and for exercising the powers of the Crown relative to the establishment of Courts of Justice vested in me by his Majesty's commission if they are so unimpeachable as I conceive them to be in point of legality, for in the first place the Assembly may infer a defeat in the powers of Government and not only triumph in the conceit of victory at present but be tempted to draw those essential powers again into question at any future time as it shall serve the purposes of faction when by the expiration of their temporary establishment of Courts the Province is reduced to the same deplorable situation it was in lately and still labours under in great measure and in the event the forbearance of it is to suffer Government for the time to be disarmed of that power which is the most essential to its only support, the only security of the civil rights of the subject and the only constitutional means under the circumstances here described of restraining public and private violences. This, my Lord, appears to me to be the season of all others fittest for the assertion of all the rights and powers of the Crown here where they are almost all called in question and disputed for it is plainly that forbearance, indulgence, relaxation and concessions serve only to encourage usurpations and to beget new and unreasonable demands. The only objection even specious that I have heard to Courts constituted by the King's authority is with respect to Jurors and their qualifications in which I think there is nothing at all solid. It is asserted here that as it has been found expedient in England to alter the description and qualification of Jurors by laws made since the settlement of this Colony which are not in force here according to the common and received doctrine that when the municipal law appointing Jurors expires there can be

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no legal Jury here according to the Laws now prevailing in England, that therefore admitting the power of constituting Courts here and in the Colonies in general to be in the Crown it must be ineffectual as it cannot of itself fix the qualification of Jurors to be otherwise than was ordained by the Laws of England at the time of the settlement of this or any other Colony which is necessary to the legal and effectual exercise of that prerogative that must be subject to the same restraint and modifications everywhere unless others are adopted by the municipal Laws of Countries without the realm of England, but the answer to this objection I think is obvious and conclusive that the royal prerogative in the Colonies was never abridged in this respect by the Laws of England establishing the qualification of Jurors since their settlement and that the qualification of Jurors in England at that period is very suitable to the circumstances of the people of this Country and will be so for an age to come, although the state, condition and opulence of the people in that Kingdom has made an alteration of it necessary there. The more, my Lord, I consider of this power of the Crown the more I am convinced of the necessity of exercising it here, for if the Assembly shall once be persuaded that Courts so constituted will be impotent without the aid of a jury Law of the Country they may be misled to avoid passing any law of that nature of longer duration than the temporary Court laws purely to prevent the exercise of the power of the Crown although it be for their own benefit. Indeed I shall ever think, my Lord, that the present and late Laws directing Jurors to be appointed by the County Courts instead of summoning them by virtue of venire facias directed to the Sheriff is liable to great objection as it makes the whole Country acquainted with the Jurors long before the sitting of the Courts and opens a door to prejudice and prepossession which may operate to the perversion of Justice that ought certainly to be guarded against by all possible precautions.

I consider, my Lord, every day with more contempt and indignation the pityful system for the administration of Justice in which I concurred at the late session, as I told the Assembly with shame and reluctance it was an expedient that I thought might save the country from absolute anarchy and confusion and I promised myself that more conviction would result from a short experiment of its futility and insufficiency than from any speculative arguments against it. In this expectation, my Lord, I am not disappointed; every man who speaks of it is sensible of its incompetency, and good will I hope so far come of evil that if his Majesty shall

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be pleased to disallow the Acts for establishing Courts of Oyer and Terminer and County Courts passed at the last Session as I cannot doubt, and to direct me to constitute Courts of civil and criminal jurisdiction according to the Laws of England pursuant to the Royal commission and Instructions many will voluntarily and the rest of the people will of necessity and for their own sakes resort to them. A little use I apprehend will convince them that they can contrive no constitution of Courts so elegible as those in England, which will at once establish that power of the Crown here and will be a grand step to the improvement of the Policy of this Country.

I beg leave to refer your Lordship to a newspaper enclosed for a detail of the proceedings of the meeting of the deputies at New Bern, the result of which was to appoint three persons, Mr Caswell, Mr Hewes and Mr Hooper, to be deputies at the congress at Philadelphia on the part of this Province. The former of these Gentlemen, I am persuaded, disapproves these measures in his heart and undertakes this office purely for the sake of maintaining his popularity, on which he depends for his continuance in the Treasuryship and which he has ever shewn the best disposition to employ for the service and advantage of Government; the other two are professed champions of all popular measures.

Having now, my Lord, seen an end of the cabals here and discovering not the least probability of foreign or domestic annoyance or disquiet until the Congress of deputies at Philadelphia shall be over, being assured by the superintendant of Indian Affairs and the people on our frontiers of the pacific dispositions of the neighbouring Indians, which a report of my Lord Dunmore to me had taught me some little time ago to suspect, I am preparing to take advantage of this interval of calm to go to New York for a short time to advise with a Physician (of whom we have not any of reputation in this Country) with regard to my health that has been much declining all the summer, and by a late severe return of illness is exceedingly impaired. I shall leave the Government in the hands of Mr Hasell, president of the Council, until my return, which will be as soon as possible and before anything material can happen, as I have nothing in view but to seek remedy for my much injured health, which I trust will excuse me to his Majesty and your Lordship for the short absence I intend from my station at a time of such perfect leisure and vacation.

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