USA > South Carolina > Documentary history of the American revolution: consisting of letters and papers relating to the contest for liberty, chiefly in South Carolina, from originals in the possession of the editor, and other sources, V.1 > Part 5
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* 1 Inst. 141. + Vaugh 294 .- 2 Pryn. Rec. 35 .-- 7 Rep. 23. $6 0.0. 1. 0. 5.
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the conquering monarch. In short, the English colonies in America, are taxed against their consent ; their criminals have a power, by Eng- lish law, to fly from their just vengeance; the value of their property is taken from them, and vested in the Crown; and despotism is established in an English Province containing 150,000 French souls, as a precedent and terror to the rest of the continent-because the English Colonists of America quitted their native country, to better their own fortunes, and to enable Great Britain to form the most lucrative colonies a parent State ever possessed-to establish the most powerful Empire the world ever saw-and to be at present in her turn the rising power in Europe.
A most striking instance of justice and gratitude to Colonists, who, according to the present system of Europe, form the basis of the British grandeur ! Colonists ! who being justly and tenderly treated, bid fair to render the British Empire more powerful, more glorious, and more durable, than any we find recorded in historic page. But alas ! instead of parental tenderness, we experience a step-mother's severity-instead of justice, we receive marks of the most unfeeling ingratitude! Why should not the English Colonists in America, enjoy the same national rights, which the English Colonists in Ireland possess ? Are not their rights the same, equally derived from one and the same source? It is with indignation the Americans, blood of the blood of the Imperial people, see themselves, by their own blood, refused the most valuable civil rights, which they have readily granted to the very Irish, an alieu race, conquered by their common forefathers. The Irish carry their appeals to the same dernier resort, and there, on equal terms, litigate their disputes with their conquerors. But the Americans, like a van- quished people, are obliged, in the dernier resort, to appeal to the King in Council ; and as King John gave the Irish law, in right of dominion by conquest, so the Americans, although of the blood of the conquerts, are under the hard necessity of receiving that for law, which their own natural monarch shall be pleased to pronounce ! Sorely as Ireland is pressed, how preferable is her political situation to that of America ! Ireland a country conquered, and fattened by the slaughtering sword of England, and now, in a considerable proportion peopled with English colonists, gives aids to the Crown only at her own pleasure-for the Imperial people do not Tax her, because her representatives "are not summoned to the English Parliament ;"* and again, " Ireland bath a Parliament of its own, and our Statutes do not bind them, " because they do not send Knights to our Parliament."" Constitutional as this
# Year Books. 20 Hen. VI, 2 .- 2 Ric. III, 12.
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doctrine is, it will not avail the English Colonists, by whom I may say America is peopled. O Americans! you are taxed, although your " Knights are not summoned," and the English Statutes, are construed to bind, although you " do not send Knights" to the British Parlia- ment; like a conquered people, you hold your property, but by the law of the monarch, pronounced by the advice of the minister! Americans, now, no longer expect spontaneous justice, from the British Dominion, and it is with indignation, that even without any political reason of State, they see themselves postponed in favor, and in important religi- ous and civil rights, to the people of Ireland, whom our fathers cou- quered. Rights ! worthy of being recovered, at the expense of slaugh- tered hecatombs of heroes. The Americans are but upon a footing with the most trifling appendages of the British Crown, and formerly appen- dages of Normandy, herself but a Dutchy in France ! Know yourselves. O Americans ! You are but upon the same establishment, you enjoy but the same civil rights with the people of Guernsey, Jersey, Sark and Alderney. People like yourselves subject to the taxation, and Legisla- tion of the British Parliament, and to the royal award in disputes of property !
I here heg leave to make two observations, which I hope will be admitted with candor. That my frequent repetition of particular words, was ventured upon solely with a view to enforce, and put in the most striking light, arguments, which, without such repetitions, might not have appeared so pointed ; and that every disagreeable word respect- ing the Irish nation, was hazarded only with the same intention.
While Hannibal thundered at the gates of Rome, such was the forti- tude of the Romans, a people destined to be populum late regem, that in the forum was sold and bought, even the very ground on which Hannibal was encomped. The Romans opposed him with a vigor, the more formidable, by being temperate. The event was suitable to the conduct. Let us imitate such an example. Let us not give up our rights, because a military government is formed, upon principles of the most baneful policy to the liberties of America, to extend along almost our whole western frontier-an appearance infinitely more formidable to the sea coast colonies than the late chain of forts in that quarter com- manded under French commissions-a goverment accustomed to despo- tism from its first existence-a people who have always hated, and by their spiritual rulers, will ever be taught to hate us, as hereties and enemies of the Grand Monarch, and by their political rulers, to hate us as enemies to despotism. Let us not despair, because armies are, as I may say, encamped upon our rights. No! we will still consider them
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our property, as the Romans did their soil, which Hannibal covered with his Numidians, and which he held planted with his hostile ensigns.
The eyes and attention of America-nay of Europe -- are fixed upon the American Congress. O Deputies ! I doubt not but that you will act worthy of such an expectation. Calmly deliberate upon, then respectfully and boldly declare the Grievances and Rights of America. Be wisely cautious what you determine, but let your determinations be, as fixed as fate. And by a firm demand of our liberties, shew a genu- ine descent from our patriotic forefathers at Running-mede-in conse- quence of whose conduct our gracious Sovereign now possesses the Im- perial Crown of Great Britain, his subjects derive the continuance of their liberties, and I, an American, have a title to write my name
FREEMAN CHARLES TOWN, South Carolina, August 10, 1774.
NOTE .- After writing this pamphlet, William Henry Drayton was superseded as a King's Judge ; and was suspended as one of his Privy Counsellors for South Carolina. The proceedings relative to the matter are here given. After this he took an active part in the Revolution of North America againat Great Britain.
THE REMONSTRANCE OF THOMAS KNOX GORDON, ESQ., CHIEF JUS- TICE, AND CHARLES MATHEWS COSSLETT, ESQ., ONE OF THE JUSTICES OF HIS MAJESTY'S COURT OF COMMON PLEAS, IN THE PROVINCE AFORESAID.
[MISE. of W. H. Drayton and Council Journals.]
IN THE COUNCIL CHAMBER, Sept. 21, 1774.
Present, his Honor the Lieutenant-Governor, the Honorables Thomas Skottowe, John Stuart, Thomas Knox Gordon, William Heury Drayton, Thomas Irving, Esquires.
His Honor, the Lieutenant-Governor, laid before the Board the follow- ing Remonstrance, which he informed them had been presented to him by Mr. Chief Justice, and Mr. Justice Cosslett, yesterday morning.
To the Honorable William Bull, Esquire, Lieutenant-Governor and Commander-in-Chief of his Majesty's Province of South Carolina :
Humbly sheweth unto your Honor, that the happiness of his Majesty's subjects does in a great measure depend upon a just, upright, and irapar- tial administration of Justice.
That in order (as far as possible) to secure so great a blessing to the people, the King's Judges are solemnly sworn to administer justice, without favor or affection.
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That the Judges are not punishable for mere errors of judgment, yet there is a constitutional method and form, well known for the removal of such as are weak and insufficient.
That there is a like constitutional remedy both for the removal and punishment of such judges as act in their offices, wickedly and corruptiy.
That it would be unbecoming your Remonstrants to say any thing touching their abilities in their several stations, but they do most stren- uously insist upon it, that they have ever acted in their offices, with the purest integrity and most upright intentions, ever making the Rights of the people and the King's just prerogatives the equal objects of their care.
That your Remonstrants acfuated by these honorable motives, hoped that if they did not deserve much praise, that they would at least escape without censure.
But your Remonstrants humbly shew unto your Honor, that in a late publication entitled " A letter from Freeman of South Carolina to the Deputies of North America assembled in the High Court of Congress at Philadelphia," great pains are taken to vilify your Remonstrants, and to represent them as men totally unfit for the offices they hold, and they are directly charged with having judicially determined a point contrary to law and justice ; and that not from ignorance, but from a wicked and corrupt motive, to render themselves agreeable to the Crown, thereby wickedly insinuating that our most gracious Sovereign has an interest distinct from that of his people, and would wish his Judges to increase his power at the expense of his subjects' rights.
That reflections of this nature. held out to public view, are not only highly injurious both to your Remonstrants and the public, by weaken- ing that confidence the King's people ought to have in his Judges, but have also a direct tendency to raise groundless fears in the minds of his Majesty's subjects, and to alienate their affections from his sacred person.
That the said publication is not under the author's real signature, yet from the note in page 6 there is no room to doubt that the Honorable William Henry Drayton, a member of his Majesty's council, and one of the Assistant Judges is the author of it.
That your Remonstrants (were it necessary) could easily justify the opinion Mr. Drayton censures, upon principles of law and justice, but they cannot condescend to enter the lists with so impotent a railer.
They however cannot help submitting it to your Honors serious con- sideration, whether a man capable of such a publication is a proper per- son to serve his Majesty, particularly in the office of a Judge on the
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same Bench with your Remonstrants, whose characters he has so wan- tonly, so illiberally, and so falsely traduced.
THOMAS KNOX GORDON. CHARLES MATHEWS COSSLETT.
Upon a late occasion I gave my word and honor that I would not in- terfere in any matter of complaint relative to the pamphlet above alluded to, I therefore decline signing this Remonstrance. -
EDWARD SAVAGE.
Mr. Drayton thereupon desired that he might have a copy of the said Remonstrance in order to give his answer thereto, and that there might be a public hearing of the merits in the matter complained against him.
His Honor, the Lieutenant-Governor, directed the Clerk to furnish Mr. Drayton with a copy of the Remonstrance, but inform him he could not permit a discussion of the matter between the Judges before any person but his Majesty's Privy Council, and therefore could not comply with his desire in granting a public hearing.
THE ANSWER OF WILLIAM HENRY DRAYTON TO "THE REMON- STRANCE OF THOMAS KNOX GORDON, ESQ .. CHIEF JUSTICE, AND CHARLES MATHEWS COSSLETT, ESQ., ONE OF THE JUSTICES OF HIS MAJESTY'S COURT OF COMMON PLEAS, IN THE PROVINCE AFORESAID," EXHIBITED TO HIS HONOR THE LIEUTENANT-GOV- ERNOR AGAINST "THE HONORABLE WILLIAM HENRY DRAYTON, A MEMBER OF HIS MAJESTY'S COUNCIL AND ONE OF HIS ASSIS- TANT JUDGES."
[MISS. of W. H. Drayton.]
To the Honorable William Bull, Esq., Lieutenant Governor and Can- mander-in-Chief in and over his Majesty's Colony of South Carolina :
MAY IT PLEASE YOUR HONOR ! In consequence of the remonstrance which your Honor laid before his Majesty's honorable Council, on the. twenty-first day of September last, and which had been presented to von two days before by Mr. Chief Justice and Mr. Justice Cosslett, toneh- ing a late publication entitled " A letter from Freeman of South Car- olina, to the Deputies of North America, assembled in the High Court of Congress at Philadelphia," charging that publication to me, and therefore submitting it to your Honor whether I am "a proper person to serve his Majesty, particularly in the office of a Judge;" I have the
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honor to form this answer to that remonstrance, with the most profound respect submitting it to your Honor's wisdom and justice. And as to draw up a proper answer, it is necessary that I examine the remon- strance minutely in, and show that I pay due attention to, every part of it, however foreign to the main subject of the complaint contained in it ; so, thus early I beg leave to bespeak your Honor's patience and indul- gence, if in tracing the meandering of my seniors in office, my answer be therefore drawn into some length.
As one erent, sir, naturally brings to the mind others of a similar nature ; so the present remonstrance forces upon me a recollection of a late complaint. In the year one thousand seven hundred and seventy- one, Mr. Chief Justice Gordon, presented to the late Governor, a com- plaint against the Honorable Rawlins Lowndes-then one of the Assis- taut Judges. The learned Chief Justice in that complaint termed Mr. Lowndes' conduct " strange, improper and unconstitutional, unbecoming the station and character of one of the King's Judges." But, sir, after a full hearing upon the complaint and answer, so little attention was paid to the ideas of the learned Chief Justice, that by the unanimous advice of council, the Governor dismissed the complaint. Hence. being sensible of the defects of the remonstrance, I already, sir, cheerfully look forward in expectation that the present remonstrance, will have a like fate with the late complaint, The same learning, temper, and prudence which formed the one, I plainly perceive have fashioned the other; and very probably the same cause gave birth to each. I will remark to your Honor, that Mr. Lowndes and myself, are the only Judges who have ventured, and with success too, to charge Juries in contradiction to the rest of the Court.
May it please your Honor! The first four sections of the remon- strauce, in my opinion, are common-place positions, absolutely uncon- nected with the subject matter, or subsequent parts of the remonstrance. However, sir, as decency induces me, not totally to slight any part, that their Honors, the Judges, think of capital importance in, and as I may say, corner-stones of the very extrajudicial work ; so, in answer to those sections, I sum up all my observations, in the comprehensive and very significant word-granted.
The fifth section, sir, is the first of moment to their Honors, or to myself. It sets forth, " that it would be unbecoming your Remon- strants to say anything touching their abilities in their several stations." I perfectly agree with their Honors in this sentiment; but surely, sir, it will not either in point of decency, or in point of law be unbecoming or injudicious in me, to say something touching so very delicate a subject ?
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For, in my necessary defence to your Honor, to their charge against me, I am constrained to call the legal abilities of those Judges into question ; otherwise your Honor might possibly be induced, in consideration of their stations as high law officers; to hold their opinions in point of law, in an unmitigated degree of estimation, to the detriment of my defence in point of law. And for this purpose, I most humbly shew unto your Honor-that on the tenth of April one thousand seven hundred and seventy-two, a case Egan. v. Swint and others, came on to be heard in Chancery. In forming the Decree, the Court was equally divided. The late Governor and every other member having voted, Mr. Chief Justice Gordon denied the Governor to give, as he termed it, the casting vote. I objected and declared that no Judge in the King's dominions had two voices on the same question. The learned Chief Justice affirmed the contrary declaring that "in Westminster Hall whenever the Chief Justice and one Puisne were of one opinion, and the two other Puisnes of a contrary opinion ; the Chief Justice and his Puisne always made the rule in the case." The present Attorney General was called in to declare the proceeding upon a division in the Court -- he at once silenced the learned Chief Justice-for, sir, the Attorney had really studied law. Farther, that on the twelth of October last, a motion was made for leave to file a Bill against the Honorable Sir Egerton Leich, Bart., for false imprisonment of T. Powell. Mr. Chief Justice, in his Majesty's Council, originated, counselled, and ordered that imprisonment; and had judgement gone against Sir Egerton, the Chief Justice must in honor have paid one-fourth part of the costs and damages; the Chief Justice also aided in the procuring Council to be employed in defence of the imprisonment, if any action should be attempted to be brought for the recovery of damages.
May it please your Honor, there is a maxim in law, with which you have been long acquainted-" Nemo potest esse judex in propria sun, causa." But, sir, every person does not understand law. The Chief Justice took his seat upon the Bench -- presided during the arguments upon the motion, which came on to be heard the sixteenth of October. and when they were concluded --- out of his pocket he very equitably drew his opinion-for he generally hears arguments prepared to answer them from an opinion in his pocket, and taking the lead -. pronounced his written opinion which he had drawn up at his Chambers ! the nation was quashed. But, notwithstanding the opinion thus extra-julicially determined and drawn up in form, and this appearance of being ja in propria sua causa." it is not to be doubted I suppose, but that the Chief Justice took his seat on the Bench, entirely unprejudiced and
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unbiased in opinion-impartial between the parties, and to borrow a figure from the Remonstrance, then "acted, in his office with the purest integrity AND MOST UPRIGHT INTENTIONS." In short, he was indispu- tably rectus in curia. Further, that on the last northern circuit, an action of Trover was brought on before Mr. Justice Cosslett. The Counsel for the defendant, pleaded the Act of limitation ; but in charg- ing the jury the Judge directed them that, "the Act did not bar, because the Plaintiff did not know where the property in litigation was, or against whom to bring the action." A determination, sir, which vio- lates every principle of law-I shall mention only one-ignorantia legis neminem excusat.
Farther, that on the eleventh of August last, Richard Howly. a native of Ireland-a character not known here, applied to the Court of' Common Pleas in Charles Town to be admitted an Attorney, his petition and affidavit setting forth that he had been a member of the Middle Temple during three years and a half, and had there kept seven distinct Terms. Our rule of Court minutely draws the lines of admission, and in Mr. Howly's case expressly requires a certificate showing that the person applying for admission " hath been a member of some of the four Law Colleges, for the space of five years at the least; and hath kept eight terms commons. Such being the rule, Mr. Chief Justice and Mr. Justice Cosslett in open Court admitted Mr. Howly " as duly qualified." I will remark to your Honor that in London no person is admitted to the Bar, but such as come within the express and strict letter of the rule of admission. But Mr. Chief Justice, under his hand, declared to me, "our rule it is true requires five years standing and eight terms Commons to be kept; but this gentleman came from England here, under a full persuasion that he had done enough-and no man can pre- tend to say that the spirit and meaning of the rule has not been pre- served." Thus, sir, I stand instructed-that the spirit and meaning of a law is preserved when the Judges accept less than that which the law expressly and clearly says, shall be accepted "at the least ;" and also, that in law, a person has really done as much as the law requires, whenever he shall be pleased to be "under a full persuasion that he had done enough." I may observe to your Honor that, there are not wanting instances to shew this doctrine is not construed to extend to Americans. All these things being of public notoriety among the prin- cipal inhabitants of this town : it was I assure your Honor, without the least astonishment, I saw your learned Remonstrants in their sixth sec- tion, gravely hope, " that if they did not deserve much praise, that they would at least escape without censure."
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Conscious of the abilities of the learned Judges, I cannot but render so much honor to them as, candidly to declare that I find myself inca- pable to imitate the style of their Remonstrance ; and I trust it will not be thought improper if meekly regulating myself by the sacred page, in good humor, I return good language for abusive terms-symptoms of heat and intemperance. Sir! your Remonstrants in their tenth section say on a point of law, " they cannot condescend to enter the lists with so impotent a railer." My respect for the King's Commissions deco- rating the persons of Mr. Chief Justice and Mr. Justice Cosslett, and elevating them into consequence and ease, prevents my retorting auy epithets of contempt upon them-my veneration for your Honor, inca- pacitates me from hurting your sensibility. with a use of abusive appel- lations respecting men connected with your Honor, by being in eminent public stations-and my own feelings, sir ! effectually bar me from con- descending to adopt language unbecoming the mouth or pen of a gentle-
man. Wherever a contrary style may be found. I trust, sir, it will not appear to flourish under my hand. But, may it please your Honor, taking into consideration the conduct of the Judges, I am at a loss readily to comprehend that tenth section of their Remonstrance. They say on a point of law, they cannot condescend to enter the lists with me; yet even while they said so to your Honor, they were actually and actively busy in preparing lists for us to engage vis-à-vis upon points of law, and those too, touching their Remonstrance itself. But perhaps they were not aware that such a consequence might attend their presenting their Remonstrance, or they presumed themselves secure from such a conse- quence, equitably expecting your Honor would condemn me unheard. However, sir. as we are entered in the lists, it is evident that the Judges have by their conduct destroyed the life and spirit of their declaration, but I most readily acquit their Honors of having done so of malice aforethought.
The fifth section again attracts my attention. The Remonstrants study to compliment the people-and in a State-paper, the Sovereign appears in an unusual situation. The Judges say, " the rights of the people and the King's just prerogatives " are " the equal objects of their care," -a declaration that carries conviction no doubt. and the impri -- ment of Thomas Powell, the printer, and the writs of assistance evidence strongly in their favor.
At length, may in please your Honor, I am arrived at the cause of the Remoustrance, " A letter from Freeman of South Carolina to the deputies of North America." Hine ile tueryna-the complaint of their HIonors the Remonstrating Judges-and, " let the stricken deer
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go weep." They represent to your Honor, that there are passages in that letter which I have not been able to find in it; and then they say " reflections of this nature held out to public view, are highly injurious to your Remonstrants." But, sir! these "reflections" are not in the publication in question-they are "held out to public view" only by your Remonstrants themselves ; of consequence, I cannot seriously think those reflections are really injurious, as I dare say your Remonstrants are not apt, at least of a forethought, to do any thing injurious to them- selves. However, if they really destroy their own reputations, the art may be in point of law, felo de se ; but may it please your Honor, as a. Judge is not a Pope, perhaps a Jury of inquest might pronounce it lunacy. In short, sir, pointed as these charges of the Judges are against me-highly dangerous to me if well founded, for they describe a libel of a most aggravated nature, I cannot be too careful to employ every argu- ment to parry their strokes. Diffident of my own abilities, allow me, sir, to call in the friendly aid of a very elegant poet."
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