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 6
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The birds in place, by factions pressed, To Jupiter their pray'rs address'd, By specious lies the State was vex'd, Their counsel's libellers perplex'd, They begg'l (to stop seditious tongues) A gracious hearing of their wrongs. Jove grants their suit. The Eagle sat Decider of the grand debate.
The Owl arose, with solemn face, And thus harrangued upon the case, The slander's here-" But these are birda, Whose wisdom lies in looks, not words, Elund'rers, who level in the dark, And always shoot beside the mark." He names not me; but these are hinte, Which manifest at whom he squints.
The Pye. to trust and pow'r preferr'd,
Damands permission to be heard. Says he, prolixity of phrase You know I hate. This libel says, " Some birds there are, who prene to noise, Are hir'd to silence wisdom's voice, And skill'di to chatter cut the hour. Rise by their emptiness to pow'r. That this is aim'd direct at me, No doubt, you'll readily agree. Ya wretches hence! the Eagle cries, 'Tis conscience, conscience that applies : The virtuous mind takes no alarm, Secur'd by innocence from harm ; While guilt, and his associate fear, Are startled at the passing sir,
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It would be unbeconning in me to say one word touching any analogy which might possibly be drawn between the Judges and the birds in place, farther than to transpose one word of a sentiment in the Remon- strance.
Libels and libellers appear, " Objects of their equal care."
I now sir! have the honor to consider the charge and inferences of the learned Judges in point of law; I will first distinctly note their errors -- and then I will form my defence.
First. Your Remonstrants have extrajudicially determined that the publication represents " them as men totally unfit for the offices they hold !"-that in it "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 !" But sir, if this is a just description of the publication, it is according to every legal idea, a libel; and whether or not the description is just-only a jury can legally determine and ascer- tain its criminality.
Secondly. Your Remonstrants having without doubt equitably deter- mined " in proprio sua causa," have also extrajudicially declared that these charges are "highly injurious" to them. Whether they are so or not, only a jury can legally determine.
Thirdly. The Judges with great candor lay down, " that reflections of this nature held out to public view have a direct tendency to raise groundless fears in the minds of his Majesty's subjects." If I may hazard an opinion on this head. a jury, who only can legally ascertain this point, would not readily think that those reflections have a ten- dency " to raise groundless fears."
Fourthly. The Judges assert the publication has a direct tendency to alienate the affections of his Majesty's subjects from his sacred per- son; a charge against me, sir, describing a contempt and misprison against the King's person and government. But whether or not this tendency is deducible from the publication, only a jury can legally determine.
Fifthly. The Judges have extrajudicially declared that I am the author of the publication in question ; and besides they have made this important determination without any legal evidence against me. It is true they learnedly tell your Honor, "the pote in page 6"' is such evi- dence of my being the author of the publication that, " there is no room to doubt" of it. But, sir, my Lord Chief Baron Gilbert, and all good
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law writers declare, this species of evidence, unconnected with better, cannot operate against me, in any Court of Law in the King's dominions. Thus, it is plain, if your Honor will admit the Lord Chief Baron's law on the point, to be better than our Chief Justices, that either the learned Chief Justice and his learned and very honorable associate do not truly understand the nature of legal evidence; or, that being clothed in the venerable garb of Judges, they thought under that dross they might safely impose that evidence upon your Honor, as legal, which is in truth inadmissible in law.
. Sixthly. The Judges have moved your Honor for punishment upon me in the last resort-before they have legally ascertained that I have been guilty of any offence ! In short they have in the same breath accused me-evidenced against me-ascertained my guilt-adjudged the nature of it-and, in angry and passionate terms against me, desired my condem- nation and punishment ! Alas, sir! this is a more violent prosecution than ever was exhibited in the Star Chamber ! But I must stop, the remonstra- ting Judges have declared, "that reflections of this nature, held out to public view, are highly injurious to them ; by weakening that confidence the King's people ought to have in his Judges,"-who, conspicuous as they are for "their abilities in their several stations," ought to expect equal confidence from the public.
Having now, sir, framed my answer touching every part of the Remonstrance, and having attended my seniors in office, in those excur- sions, from the main subject of their complaint, in which they learnedly chose to lead the way, I now have the honor to form my defence in point of law.
First. The learned Judges, contrary to the uniform practice of the excellent Lord Chief Justice Hale, have publicly predetermined that I am the author of the publication in question. A determination which, in point of law, I am warranted to say is illegal.
Secondly. The Judges assert that in the publication they are directly charged in such sort, as I assert is not deducible from any passages in it.
And, Thirdly. They proceed to draw inferences of the pernicious tendency of those charges; but, sir! as these are points properly cogni- zable by a jury in the known, established, and constitutional judicatories, so the Judge's application to your Honor, previous to such a legal inquiry, demonstrates that they meant to fix a charge of a very criminal nature and to draw down punishment upon me independent of a legal trial by my Peers. An attempt which plainly evinces their principles to be arbitrary, oppressive and inimical to the liberty of the subject, to our happy constitution, and to American Freedom !
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Upon the whole, sir ! I humbly apprehend, the laws. and constitution have not vested in your Honor, an original jurisdiction in this case; or power to compel the attendance of, or even to admit witnesses so as to hear, judge, and finally determine the merits of the Remonstrance which has been presented to your Honor.
I therefore humbly rest satisfied that your Honor will dismiss the Remonstrance, as illegally, unconstitutionally, and unequitably instiga- ting punishment upon me in the last resort, even before any offence has been legally imputed, not to say proved against me.
Thus conscious of the ground on which I stand, I hold myself to be absolutely out of the reach of the learned Judges on the present point of contention ; there is a law maxim, that it is the voice both of law and humanity that every one must be presumed innocent till he can be proved guilty ; and, I rely upon the laws and your Honors knowledge and justice.
All which is most humbly submitted to your Honor.
WM. HY. DRAYTON. CHARLES TOWN, South Carolina, October 3, 1774.
THE REPLY OF THOMAS KNOX GORDON, ESQ., CHIEF JUSTICE, AND CHARLES MATHEWS COSSLEIT, ESQ., ONE OF THE JUSTICES OF HIS MAJESTY'S COURT OF COMMON PLEAS IN THE SAID PROV- INCE, TO THE ANSWER OF WILLIAM HENRY DRAYTON, ESQ., ONE OF THE JUSTICES OF THE SAID COURT.
[MISS. of W. H. Draytou and Council Journals.]
To the Honorable William Bull, Esquire, Lieutenant-Governor and. Commander-in-Chief in and over his Majesty's Province of South Carolina :
MAY IT PLEASE YOUR HONOR :- In reply to the answer of Mr. Justice Drayton, we shall not in imitation of him, endeavor to amuse the fancy or mislead the judgment, by attempting a display of wit and humor. The subject is of too interesting a nature to be treated ludicrously ; nor shall we trespass on your Honor's time by staying to refute the many errors, mistakes, and misrepresentations contained in the first ten pares of the answer, all the matter thereof, except one assertion in pare nine being entirely foreign to the subject of the Remonstrance; from which two plain questions only do arise-first: is Mr. Justice Drayton the author of Freeman's letter ? if he is-secondly : is such a publication consistent with the duty he owes the King as one of his servants ?
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In our humble apprehension, to clear himself of the charge contained in the Remonstrance, there were but two methods for Mr. Justice Drayton to take, either to deny that he was the author of Freeman's letter, or frankly to acknowledge that he was, and then shew that it contained nothing inconsistent with his duty to the King. Mr. Justice Drayton has, however, thought proper to shape his defence in a differ- ent manner, and we shall now endeavor to shew the insufficiency and weakness of it.
After writing above ten abusive pages, Mr. Justice Drayton at last condescends in the latter end of page eleven to consider the charge and inferences of the Remonstrance in point of Law, but that he has totally mistaken the law in this point, and has no clear conception, either of your Honor's power in this case, or of our mode of application to you, we shall presently clearly shew.
He sets out with saying "We have extrajudically determined that the publication represents us as men totally unfit for the offices we hold." This, sir, we absolutely deny, we have determined nothing, either judi- cially, or extrajudicially on the subject. We have only humbly repre- sented to your Honor, that, in the publication in question, "great pains are taken to vilify us and represent us as men totally unfit for the offices we hold," and that the truth is so, we appeal to the publication itself in pages nineteen and twenty, where Mr. Justice Drayton, may find the reflections complained of in the Remonstrance, which, however, in the ninth page of his answer he positively denies are contained in the publi- cation. He goes on to tell your Honor that the Remonstrance set forth, that in the publication, we 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 ourselves agreeable to the Crown." It is true, sir, this is the language of the Remonstrance, and that it is a just description of the publication, and that the publication itself, not only in the instance mentioned, but in almost every page of it, is according to every legal idea, a libel against his Majesty, bis Government, his Ministers, and his Parliament. We humbly sabmit to your Honor's wisdom and judgment, when an action is brought against Mr. Justice Drayton, for writing a libel, it will then undoubtedly be the province of a jury to determine upon the matter, and say, whether he is guilty or not guilty, but you. sir, who have the honor of representing the King's person, and to whom a part of his power is delegated, want not the aid of a jury to determine upon the conduer of the King's servants, or to inform you, when it is proper, or improper, to dismiss them from their royal master's service. Had, Mr. Justice
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Drayton, sir, attended to the manifest distinction, between an action instituted against an offender in a Court of Law, in order to bring him to punishment for his crime, and a complaint made to his master, repre- senting him as unfit to be continued longer in by service --- we say, sir, had he attended to this palpable distinction, he would have seen your Honor's power over him, without the intervention of a jury. Would Mr. Justice Drayton think it necessary before he discharged a bad servant, to have the verdict of a jury for so doing, or would he consci- enciously refuse to determine on his conduer, without such a sanction ? surely not! But this power which he would doubtless claim himself, be modestly denies his Sovereign! The same spirit breathes in every page of Freeman !
The second clause of his answer is, "That we having without doubt equitably determined in propria causa, have also extrajudically declared that these charges are highly injurious to us -- but whether they are so or not, only a jury can legally determine. To the first part of this clause we reply as we have observed before, that we have determined nothing. To the second part of it we admit we have declared to your Honor that these charges are highly injurious to us, and to indulge the gentleman, we admit such declaration is extrajudicial, had it been judicial there would have been reason to say we had determined in proprio causa. To the last part of it we reply, that if we shall hereafter institute a suit against Mr. Justice Drayton for damages, we shall. then submit it to a jury whether we have sustained any and what degree of injury.
The third eluse of his answer is, that "a jury only can legally ascer- tain whether the reflections contained in the publication have a direct tendency to raise groundless fears in the minds of his Majesty's sub- jects." Our reply is that should an action be brought against bimo to punish him for the crime of libelling, it would then be the province of a jury to ascertain that point. As to the opinion hazarded by the gen- tleman of what a jury might think, upon such an occasion, it being only an opinion requires no answer-the opinion, however (to use his own phrase), is somewhat hazardous and might possibly turn ont to be ill- founded, notwithstanding the gentleman's great popularity, and the high degree of estimation he stands in with the public.
The fourth clause is, that " only a jury can legally determine whether such a tendency is deducible from the publication as we allege, viz : the alienation of the affections of his Majesty's subjects from his hatred person." Was this a prosecution in a Court of Law for a libel, the gentleman would be right; it however, is not, and we have already observed on your Honor's power of determining on the conduct of the
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King's servants. The gentleman, with some surprise, says this charge azainst him describes a contempt and misprison against the King's per- son and government. It certainly does, and who that reads " Freeman's" letter, can hesitate a moment to declare, the author of it guilty of that crime? For who that has any real regard to his country !-- who that has the smallest particle of affection or respect for his Sovereign, would as " Freeman" does in his first pages, compare the present time with the reign of Charles the First ? There is not the most distant similitude between the two periods, nor can the present unhappy discontents sub- sisting in his Majesty's American Dominions, be with any degree of truth compared to those, which subsisted in England during the reign of the unhappy Charles. Your Honor's acquaintance with history, makes it unnecessary for us to point out the difference. But not con- tent with this false and disgusting picture of our most gracious sovereign "Freemen " next compares him to the Turkish Sultan ! and asks " what greater power has the Sovereign at Constantinople over a Province in the East, than the Sovereign at London now has over a Province in the west?" Can anything be more contemptuous both to the King and to his people ! to liken a Prince, who has ever made the rules of the Con- stitution the measures of his government, and in the very instance men- tioned has acted by the advice and consent of his Parliament, to liken such a Prince, to the despotic Monarch of the Turkish Empire, is such an insult, as language cannot furnish terms sufficiently strony to express it by. but every loyal British heart, though wounded by the calumny will vindicate our sovereign from the foul aspersion.
In pages five and six he openly declares " That the liberty and pro- perty of the American are now at the pleasure of a despotie power, and that an idea of a risk of life itself, in defence of his hereditary rights cannot appal him, or make him shake from his purpose, when perhaps those Rights can be maintained, only by a temporal suspension of the rules of Constitutional proceedings." And a little after he says " He now opposes a violation of his rights by an established Monarchy." Is not this, sir, a direct opposition to the King, who is the established Monarch ? Is it not sounding the trumpet of rebellion, and declaring that he will risk his life to suspend the rules of constitutional pro- ceedings.
The next instance of contemptuous treatment of majesty occurs in the eighteenth page of "Freeman's" letter. where the King is pretty severely censured, for exercising his undoubted right of appointing such Counsellors, as he thinks will give the honestest advice, and best assist- ance to his different Governors.
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In the next two pages, with a decency and modesty peculiar to " Freeman " himself, he openly and plainly insinuates, that dishonesty is the best recommendation of a Judge to the Royal favor, and then holds on his way to fly at objects of more importance, of greater griev- ance ! nothing less than the increase of Royal power by the annihilation of popular rights, and a despotism over English people ; in page twenty- four, still holding on his way he wings his flight still higher, and asks " How then has the Parliament acquired a power, and how has it dared to constitute the King so despotic, in any part of the British Empire ?" This is directly to Majesty, it is asking how has the King acquired a power ? and how has he dared to constitute himself so despotie ? for your Honor knows, that the King is a component part of the Parlia- ment, and of course must be included in, and meant by the termu Par- liament. It would be tedious to point out every part of this very extra- ordinary letter, wherein the King and his government are treated with contempt and disrespect. We have only selected a few of the most striking; your own discernment (if your Honor has condescended to read the letter) must have discovered the many others with which it abounds.
The fifth paragraph of the answer is, " that the Judges have extra- judicially declared, Mr. Justice Drayton to be the author of - Free- man's" letter, and have made this important determination without any legal evidence against him. Before we proceed in this paragraph, we shall stop a moment only to observe, that whatever declaration we have made on the subject certainly was extrajudicial. Judicial it could not be for two reasons : First-because the matter never did nor indeed ever can, come before us in our judicial capacities, and (secondly) if it had the rule of Law, " ad Questionem facti non respondent judices, " would have restrained us from making any such judicial declaration- but we have declared or determined him to be the author without any legal evidence. It is certainly true, sir, we have in our minds deter- mined him to be the author, and we have declared to your Honor that from the note in page six there is no room to doubt of it, and we expect your Honor will be of the same opinion. For, though Mr. Justice Dray- ton goes on to tell your Honor, that Lord Chief Baron Gilbert, and all other good law writers, declare this species of evidence, unconnected with better, cannot operate against him in any Court of Law in the King's Dominions, we must beg leave to put him in mind of a circum- stance, he seems to have totally forgot throughout his whole answer, which is, that he is not now in a Court of Law; superficial readers who lightly skim upon the surface only, will often fall into mistakes of this
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nature, but the student who reads with attention, will go to the bottom, will consider every circumstance, and will not apply particular Rules to general purposes, nor extend them further than the subject matter his author treats of. If we should ever meet Mr. Justice Drayton upon this question in a Court of Law, we shall not pretend to dispute my Lord Chief Baron Gilbert's authority, in regard to evidence -- but in the present case, we apprehend your Honor is by no means restrained by the strict rules of evidence in Courts of Law. It is the King's preroga- tive both to retain and discharge such servants, as he thinks proper, nor is he ever bound to give his reasons for so doing. You, sir, are now to exercise that prerogative, which the King has delegated to you. as frOF- ernor of this, his, Province ; and we humbly apprehend, that a thorough conviction in your own mind, that Mr. Justice Drayton is the author of the publication in question, is all the evidence that is requisite, or that your Honor will look for.
The sixth paragraph of the answer sets forth "that we have moved your Honor for punishment against him, in the last resort. before we have legally ascertained that he has been guilty of any offence." But. sir. we have only represented to your Honor, that the publication ia question contains indecent reflections on the King and his Judges, and we have set forth what we conceive to be the tendency of these reflec- tions, but we have moved for no punishment against Mr. Justice Dray- ton or any other particular man. It is true, we have told your Honor. that we alledge and do believe (for the reason contained in the Remon- strance) that he is the author of the publication, and we conclude with submitting it to your Honor, whether a man capable of such a publica- tion, is a proper person to serve his Majesty.
The honorable gentleman comes now to form his defence in point of law, but as this law defence is nothing more than a repetition of what he had before set forth, and as we apprehend we have minutely consid- ered, and fully refuted all he has said upon the subject, we shall now hasten to release your Honor from this disagreeable business.
But before we conclude, we must request your Honor's attention to the last paragraph but one of the answer. The bonorable gentleman at first joins issue with us on the subject of the Remonstrance; then enters into a long defence, and when he has concluded that, he has the honor of forming a very learned and elaborate defence in point of law-that being finished-he concludes with a plea to the Jurisdiction of the Court! this is really new, and is an inversion of all the rules of law pleadings ; for a plea to the jurisdiction, being a dilatory plea, is to be first pleaded, nothing more is incumbent on the defendant, until the
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truth or merits of his plea are determined by the Court ; and if the plea is held to be good, the plaintiff and his cause are dismissed from that jurisdiction ; but if the plea is over ruled, the judgment of the Court is, that the defendant respondent ouster, or shall put in a better plea, so the honorable gentleman bas ended where he should have begun ! and unfortunately by beginning in the wrong place, and putting iu an issu- able plea, he has in fact admitted your Honor's power, and precluded himself from pleading to the jurisdiction, however caleat quantum valere potest ; let the honorable gentleman make the most of it, your Honor will hardly give up the King's prerogative to such a special pleader.
Upon the whole, sir, we humbly apprehend, that Mr. Justice Dray- ton's answer to the Remonstrance, is altogether insufficient; and that your Honor has sufficient evidence to induce you to believe him to be the author of "Freeman's" letter. We also apprehend, that the said letter is a false libel upon his Majesty and his government, and that the inferences contained in the Remonstrance, and in this reply, are fairly deducible from it; all which we humbly submit to your Honor's wisdom and judgment, and as in our Remonstrance, we again submit it to your Honor, whether a man capable of such a publication, is a proper person to serve his Majesty.
THOMAS KNOX GORDON, CHARLES MATHEWS COSSLETT.
THE REJOINDER INTENDED TO HAVE BEEN DELIVERED.
[MSS. of W. H. Drayton.]
MAY IT PLEASE YOUR HONOR :- Standing here, I feel myself agi- tated by various inclinations ; they operate upon each other, and give me no small degree of pain lest my present conduct should be in any degree improper. I wish to address your Honor with that profound respect which is due to your public character-that veneration which our consanguinity demands from me ; yet I wish to address your Honor with that free scope of argument which this extraordinary case requires, and that just degree of animadversion which the conduct of the Re- monstrants deserves from my mouth, In this latter respect, I mean to be severe, within the bounds of propriety ; yet, I confess, I feel some inclination to approach its uttermost limits.
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