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Letter from Josiah Martin to William Legge, Earl of Dartmouth
Martin, Josiah, 1737-1786
April 02, 1774
Volume 09, Pages 958-967

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

No Carolina New Bern, April 2d 1774.

My Lord,

I have the honor to acquaint your Lordship, that the General Assembly of this Province, met here pursuant to Prorogation, at the beginning of the last month, and continued sitting until the 26th day of it, without effecting anything material for the public good; as will but too plainly appear by the Journals of the Council and Assembly, which I shall transmit to your Lordship as soon as I can obtain Transcripts of them, in the mean time your Lordship will discern the temper of the Assembly by its address to me, of which, of the Address of the Council, and of my Speeches in the course of the Session, I inclose Copies herewith. The Assembly your Lordship will observe, boasts of the People's approbation of its past conduct, which would appear by the Address of that House, to have been general; that I am warranted to say, is by no means the case, it is true, that some of the Members who have been principal Leaders in the opposition to the measures of Government, have had influence enough with their Electors to obtain the most fulsome offerings of adulation for their patriotism; while other of the Electors, have by their Instructions, expressed the fullest approbation of the conduct, and propositions of Government; and enjoined their representatives to accept of Court Laws conformable thereto; by

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some, it is asserted, that the People at large are highly dissatisfied with the Proceedings of the Assembly, by others, it is alleged, that the majority, being Debtors, is on the side of the Assembly, rejoicing in the protection they enjoy from the suspense of Justice whencesoever it arises, and it is impossible for me to determine what is the truth.

Your Lordship will receive herewith Copies of some very extraordinary resolves the House of Assembly entered upon its Journals on the 24th day of March, which I considered in their nature so unconstitutional, and in their tendency so ruinous to the credit of this Country, as to demand every exertion of Government to prevent their effect. I was ignorant of this transaction on the 26th of March, at the time of the Prorogation, but on the 28th I consulted His Majesty's Council on the measures proper to be taken in the case, and your Lordship will perceive by the Minutes, the Board was unanimously of opinion that the immediate dissolution of the Assembly was become indispensible, and advised also the issuing a inforcing the collection of the Tax and duty, to which the resolves of the Assembly refer, according to the Law imposing them; that those resolves were calculated to defeat these steps my Lord, I have pursued; & Writs have been issued, for the election of a new Assembly, returnable on the 26th day of May next, being one day beyond the time to which the late Assembly stood prorogued, but unless some unforseen public exigency shall make it expedient I do not propose another meeting of the Legislature untill the fall, when I hope to know His Majesty's further pleasure on the points which the Assembly hath so long made obstacles to the Establishment of Courts of Justice upon any reasonable Plan. It appears my Lord that Bills have been brought into the Assembly at every Session, except one, since I came to this Government, for the purpose of taking off the Tax & duty, that are subjects of the resolves above mentioned. At the first a Bill actually passed both the Council and Assembly, and was rejected by me; since that time, when I took much pains to shew the Council, it was a measure inconsistent with the Public faith, and directly contrary, to the Act of the 4th year of His present Majesty, relative to the Paper Bills of Credit in the Colonies, it has been rejected at that Board, in consequence of which, the Assembly has entered resolves upon its Journals, from time to time, declaring that the Tax and duty have had the effect intended by the Law imposing them, and that they ought therefore to discontinue,

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but never has gone so far as in the resolves I now lay before your Lordship, by which that Branch of the Legislature, has assumed the dangerous power, of dispensing with the positive Laws of the Country.

Besides the political enormity of this attempt of the Assembly, to abrogate a solemn and important Law, by its single Veto, there is something so contrary to reason, and justice, as well as good policy in this Proceeding, that I can never cease to wonder at it; for notwithstanding it is asserted, that the Tax, and duty, have had their effect, there is nothing more certain and notorious to every man, than that there is a vast sum of money, yet in circulation, of the emission of forty thousand pounds, in Paper Bills of Credit, of legal tender in the year 1754, which this Tax, and duty, were expressly laid to redeem; and by the Law directed to continue, until the same should be called in, burnt, and destroyed. Indeed, by the last clause but one, of that Law, it appears that the Tax, and duty in question, were thereby engaged, to sink as well the then [present] circulating Bills of Credit, as those to be emitted immediately under the authority of that Act. The plain truth is, my Lord, the Assembly wishes to continue the legal tender Paper Bills in circulation forever, at the same time, that it is aiming to withdraw the only support of their credit, and that House is encouraged without doubt to persevere in this attempt, from the success of a former proceeding of like nature, of which I took notice in my letter No. 9 of my correspondence with the Earl of Hillsborough.

The circumstances of it, were, as appear by the Journals of the Assembly, that in the month of December, in the year 1768, the House resolved, that a Tax of one shilling pr Poll imposed by Law for sinking £12,000 Proc. money in Bills of Credit of legal tender, emitted in the year 1760, and another Tax of two shillings pr poll laid for sinking £20,000 like money, emitted in the year 1761, having had their effect, should cease, and be no longer collected. The Council concurred in this resolve, but Mr Tryon, the then Governor of this Province, seeing that the Bills of those emissions, were then abundant in circulation, as they continue to be at this day, opposed its operation vigorously, by issuing a inforcing the Collection thereof, according to the direction of the respective Laws, under which the said sums were uttered, that declare, as the Law before alluded to, the Taxes shall continue to be collected, until the whole sums to be emitted under their authority, be paid in, and

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burnt in consequence of this step. These Taxes were partially, if not generally, collected throughout the Province, until the year 1770, when an Act passed entitled “An Act to indemnify the several Sheriffs who have not collected the one shilling Tax pr Poll for sinking the £12,000 granted in the year 1760, and the Tax of two shillings pr Poll for sinking the £20,000 granted in the year 1761, and to direct such Sheriffs who have received the said Taxes to refund the same to the People from whom they received the said Taxes, since which time these Taxes have not been collected. I can only account for the Governor's assent to this Act upon the supposition, that he was induced to it in that time of distraction, in order to engage the Assembly to adopt measures that were then indispensibly necessary to the safety and tranquility of the Country. But as that Gentleman always acted upon the noblest and best principles, I cannot doubt that he fully justified the expediency of his conduct. The effect of it, however, has been to withdraw Taxes, appropriated to the redemption of a quantity of legal tender Paper money, of which there is a large sum still extant, that will continue to circulate, as it has done hitherto, with common consent, I presume, until the hand of all consuming time shall destroy it, although since the prop of its credit hath been thus removed, it is, in fact, become of no value, and its redemption can only be effected, by enforcing again the Laws under which it was emitted, or by a new fund established for the purpose; to both which measures I fear, the Assembly will be equally averse.

Thus I have made your Lordship fully acquainted with the principles of the Assembly's and my own conduct in relation to this matter; and I flatter myself His Majesty and your Lordship will approve the measures I have taken, in which I have been entirely governed by my sense of duty to His Majesty, and due regard to the honor and credit of this Colony.

The Dissolution of the Assembly is a step that I confess, my Lord, I have taken with some reluctance, as I clearly discovered that the Cabals and Parties in it were disjointing fast; but the violence that the House offered to the Constitution, in resolving away the effect of a positive law, and a law upon which the Public Credit so essentially depends, I thought, with the Council, could not be passed over, consistently with the justice and dignity of Government. Many well judging people think it well timed, and that it will produce happy consequences.

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Your Lordship will observe by the Proceedings of the House of Assembly on the 23d day of March, it has done away the personal slight, intended to me at the late Session, in the resolve of the last day of it, which was concerted entirely by two Members, whose names I then mentioned to your Lordship; the other Members, who who were present at the time the resolve was entered upon the Journals, disavowing solemnly their concurrence in it, and many of them disclaiming that they ever heard it proposed, as I am informed, notwithstanding it appears by the resolve as it was delivered in to the Clerk at the Table, which I saw drawn up in the hand writing of its Contrivers, that it passed Nemine Contradicente, which implies at least, negative and general approbation.

I have now the honor to lay before your Lordship a Bill for establishing Superior Courts, that to my great surprise passed the Council, as well as the Assembly, at the late Session; although it is at least as exceptionable as any Bill of that nature heretofore proposed; containing regulations concerning attachments, and a limitation of the original jurisdiction of the Superior Courts, inconsistent with my Instructions that I had fully and repeatedly communicated to the other Branches of the Legislature, and more particularly to the Council, and also the repeal of the Bill establishing fees for the support of His Majesty's Chief Justice, while no appointment is made in lieu thereof. Upon all which considerations, I was obliged, in duty, to refuse my assent to it. But as it is a Bill of the greatest consequence, and that I find by the Journals of the Assembly, it is to be supported at the Board of Trade by a Mr Elmsley and a Mr Barker, late practising Attornies in this Country, and now in England, who are appointed special Agents for the purpose, I think it may be proper to state my objections to it, more at large to your Lordship, which are

1st That the original jurisdiction of the Superior Courts is limited contrary to His Majesty's Instructions, communicated by your Lordship's letter No. 6 to cases exceeding twenty pounds value, where Plaintiff and Defendant shall live in the same District, and to matters above ten pounds value where they shall live in different Districts, as will appear on reference to the 11th clause of the Bill. The necessity of this restriction, my Lord, is insisted on to prevent oppressive Creditors harrassing their Debtors, by bringing little suits into Superior Courts at a great distance from their abodes, and aggravating the costs and charges upon the Defendant. But this reasoning,

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I apprehend, my Lord, does not hold good, for it is not to be presumed that Creditors, where they could expect justice in the Inferior Courts, would not institute their suits there, where they can recover their money in nine months, rather than in the Superior Courts, where recoveries could not be had in less time than eighteen months. Besides, creditors who had it in view to harrass their Debtors, and to swell the charges of their suits, would certainly do it more effectually by carrying them first through the inferior judicatures, and then by appeal into the Superior Courts than by commencing their actions originally in the latter. It would be easy, however, to obviate this objection, if it has any force, without depriving the subject of the advantage, that I think important, of choosing between two jurisdictions, where he will have his property tried, in the first instance, by provision in the Court Act, that all suits, where the matter in question does not exceed twenty pounds, shall be brought in no other Superior Court than that of the District in which the Defendant resides, and that the Attornies Fees and other costs and charges therein, shall be the same in the Superior Courts, which will remove the objection, that the Attornies, to enhance their gain, would institute any suit in the Superior Courts. But the true ground upon which it is wished to limit the original jurisdiction of the Superior Courts, is, that the County Court Clerks, of which there are many in the House of Assembly, apprehend, if all suits could be brought there, it would tend to the diminution of the business of their Courts, and consequently lessen their emoluments, and I am very sure that if Government had proposed the very limitation of the Superior Court's Jurisdiction that the Assembly now contends for, it would have been opposed by all the other Members of that Body except the Clerks with more eagerness than it is now adopted.

2dly. That in the Provision of the Bill, relating to attachments, the explanation of the due proof required by the 20th clause of the Debtors absconding, to avoid payment of the debts &c, the reason assigned for which, is to render it intelligible to many of the ignorant Justices who are in this Country supposed, and I believe but too justly, to be wanting in knowledge & capacity to determine what is the due proof of such circumstances that should entitle a Plaintiff to a Writ of Attachment, reduces that to vague suggestion, suspicion and pretext which ought to be full, positive as in the nature of things it can be, & satisfactory to the conscience of the

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Magistrate; appointed to do justice between Plaintiff and Defendant and of which he is to judge from circumstances, perhaps impossible to be set forth, as they may arise out of every particular case, which I conceive is not contained in this explanatory disjunctive clause, and cannot be properly defined as depending on the various facts, that may attend different cases, of whose weight the Magistrate should be left to judge. And hereupon, my Lord, I cannot help observing, that by the Laws of Attachment of the other Colonies that I have seen (Virginia only excepted, where the Inferior Justices, are empowered to grant Attachments for debts not exceeding £5) the Judges of the Supreme Courts, only, are vested with power to issue that Process, to whom no explanation of due proof can be supposed wanting. In this Province, by the former Court Law, and by this now offered to your Lordship's consideration, Justices of the Peace are authorized to grant Attachments for any sums, and it is notorious, that they have heretofore granted them without any proof of debt, and without any Oath whatsoever.

3dly. That the Provision of the said 20th clause (which is manifestly partial) that no Attachment shall be granted except where the cause of Action &c., can be construed to arise within the Colony, is destroyed by the subsequent part of the Clause, which directs that before the Defendant be suffered to plead, he, or his Attorney, shall give bail to a new suit or action, if the Plaintiff judges one necessary. For, if the absent Defendant shall have no Attorney here, as may happen, no bail is offered, and the Attachment will stand good, although the cause of Action clearly arose out of the Colony, or if he has an Attorney here, the Plaintiff, who may hold a person to bail (which is by this Law in all cases to be deemed special) upon his own suggestion of Damage, without affidavit, as Writs are in all other Actions obtainable here, may lay them so high, that the Attorney of the Defendant shall not be able to procure bail, and I think it appears by the form of the Writ, prescribed in this Law, that damages suggested, are designed to be ground for Attachments.

4thly. That this Bill, without a suspending clause, repeals that part of an Act, passed in the year 1740, which settles Fees on His Majesty's Chief Justice, that is contrary to the 18th Article of the King's General Instructions to me, and as I conceive inconsistent with justice and good policy, while no other Provision is made for the support of that Officer.

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I hope for your Lordship's favorable construction of my meaning, when I suggest humbly my opinion of the expediency of giving some uniform Plan of Attachment, to all the Colonies, which now practice various modes; it would seem reasonable, I think, that such matters of Commercial Policy, should [be] under the same regulations, as nearly as possible, everywhere throughout the King's Dominions. Discriminations in such points, of common interest, & concernment, will not fail to create opposition and discontent, in such Provinces as are denied the convenient Laws, for the security of Property, that are admitted in others. And I confess to your Lordship, I should feel sensibly hurt by any measure that should place the People of this Province, over which His Majesty has been graciously pleased to appoint me His Governor, upon a footing of less advantage, than the Inhabitants of the other Colonies. I have at length procured a Copy of the Attachment Law of South Carolina, that is of great latitude and extent, and I transmit it herewith for your Lordship's information.

After all the long struggle that has been made here, for a particular mode of attaching the effects of foreign Debtors, and that it has been asserted in the Assembly, to be a Privilege held ever since the Establishment of a Legislature in this Province, many of the most eminent Lawyers, are of opinion with me, that no Judicial Attachment has been obtainable, as assist such Debtors, by a fair construction, of any Law of this Country, from the beginning of time. It appears by the Journal of the Assembly, that the House on the 23d day of March resolved upon an Address to be presented to the King, in which His Majesty is alternatively to be implored to withdraw His Instructions, to the Governor of this Province, not to pass any Law subjecting the Goods, Chattels, Lands and Tenements of Debtors, taken on execution of a valuation, &c. Now, upon what ground my Lord, the Assembly has supposed I rejected that Law, at the Session in March 1773, in consequence of particular Instructions from His Majesty, I cannot divine, for I assigned no other reasons for so doing, than its being obviously prejudicial to commerce, and injurious to the credit of this Province. That Law my Lord, has been ever held in execration, by the mercantile Body of this Country, to which it was certainly a great grievance, for by its Provisions, as your Lordship will see on reference to the Act passed in the year 1770, Intituled “An Act to direct Sheriffs in levying executions, and the Disposal of Lands, Goods & Chattels taken

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thereon.” A Debtor might pay his Creditor a just debt, in commodities fit for exportation, at two thirds of their value, under the sanction of which, Merchants might be, and according to my information, actually have been paid in Tow, Timber and other such unwiedly articles, at one, two or three hundred miles distance from navigation, where it is worth ten times their value to bring them to market; or in land as impossible to be converted into money, but with great loss and disadvantage, and such my Lord, were the apprehensions and dread of its being re-enacted, that while the Bill was depending, the merchants were everywhere actually uniting, to address me, to refuse my assent to it; there is a law of indulgence to Debtors in Virginia, which I have often recommended to supply the want of this Law, having I think all its virtues, without its defects.

The opposition that has appeared in the Assembly to the provisions of the Superior Court Act recommended by Government may, according to the opinions of some of the most discerning members of that Body, be ascribed to different principles that have actuated the various leaders of it. Some few are represented as having acted in it conscientiously, and from a sense of rectitude and public good. Another set of men of broken fortunes resisted them in order to prevent the erection of Courts, to the Justice of which they knew they must become sacrifices. And a third have made their opposition to Government an engine to gain weight and popularity in the Assembly, against the next appointment of Treasurers, which comes on in the next winter. The ignorant majority of the House have followed the Leaders of these several descriptions implicitly, without knowing, understanding, or entering into their views.

Among the several Acts passed at the late Session, which I shall transmit, as soon as fair transcripts of them can be made, there is one, my Lord, for establishing Inferior Courts, and another for appointing Courts of Oyer and Terminer that is dependent on the former, which form a Plan so new and extraordinary, for the administration of Justice, as I am sensible needs every apology I can make for passing them. But the measures taken by the Assembly having rendered ineffectual the Powers I derive from His Majesty's Commission for the constitution of Courts of Civil and Criminal Jurisdiction in this Province, Where the hands of Government are so extremely weak, I thought it expedient to adopt even this new fangled and inadequate plan, that will soon discover its own nakedness

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and induce the adoption of a better, rather than to have a Colony in so rude a state as this is, altogether without any mode for the distribution of Justice; and it is upon the necessity of the case alone that I rest my hopes of His Majesty's making a gracious allowance for my assenting to these Acts, in themselves so highly exceptionable.

It has been matter of no less surprise than consolation to me that during the suspense of the Courts of Justice for more than six months, violences have not been more frequent than while they were regularly held. I hope, and think, it is a good presage of the amendment of the People's morals here.

I have the honor to be &c.,

P. S. Sickness depriving me of all aid, my Lord, I am obliged to write myself, and fear I am ill qualified to write for your Lordship's inspection, especially too as I am now exceedingly fatigued with business and at no time a good Amanuensis.