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 7
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I well know the nicer sensations of delicacy are apt to take alarm a: circumstances by which it may be thought a Judge may be apt to be
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biassed; and, therefore, to avoid any imputation of an undue bias, a Judge is sometimes apt to bear harder against those circumstances than strict justice may require-incidit in scyllam capiens vitare Charybdim. Hence, considering your Honor's station ; that my accusers are Judges nominated by the King; and that I have the honor to be your nephew ; I am aware your delicacy is already upon the watch -- it is even listen- ing-to protect the King's servants, as they style themselves, from the severity of your kinsman. But, sir, conspicuous as you are for your delicacy, you are not less so for your justice ; and, fearful as I may be of the effects of the former, I feel myself reassured from my knowledge of the latter. I have a confidence that your Honor will allow me to speak with that boldness with which a free American has a just title to express himself; that boldness which the times and the occasion loudly demand.
The Remonstrance, the answer, and the reply, having been just read, I will concisely touch upon some parts of each, that by collecting the arguments into one point, they may the easier penetrate the mind ; and, although, by advice of Council, your Honor did, on the ninth of December, issue a supersedeas to my commission as a Judge, in order that the King's appointment of a Judge, in the room of Mr. Murray, deceased, might have full effect, yet, as this hearing might have been had before the issuing the supersedeas, but that the Chief Justice was at that critical juncture-that very day taken ill with the gout-as the Remonstrance was calculated to effect my suspension, and as it might possibly have had such an effect, had not Mr. Gregory arrived here so soon as he did; so I shall speak as if the suspension was still the ob- ject of the Remonstrance. At once, that the Chief Justice may derive no advantage from his critical illness; that the argument may be pre- served upon its original foot ; and that I thereby may the more clearly demonstrate the complaint contained in the Remonstrance was uncon- stitutionally laid before your Honor; and that the Remonstrance was ineffectual, on any principles of reason, law, or the Constitution, to ac- complish the end it had in view.
In order to sound the depth and to ascertain the force of the oppres- sive torrent, dowing from the pens of the Remonstrants, I beg leave to begin, at the source of the stream-the title of their complaint. And there, your Honor is told that, it is "the Remonstrance," of a "Chief Justice," and of "one of the Justices of the Common Pleas." It is to be presumed, these Judges conceived such titles would naturally give the greatest weight to their complaint ; first, as the complainants were, in such important stations in this colony-and secondly, as that, the
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matter of the complaint, having been collected, canvassed and digested, by Judges sent from England, therefore, presumable to be learned in the law; your Honor should, at once, be of opinion that, what they stated as criminal, was so ; what they stated as sufficient evidence, was legally so; what they submitted to your Honor's serious consideration and determination, were points upon which, you could legally consider, and constitutionally determine; and that the suspension to which they alluded, was constitutionally proper to be made for the causes assigned by them. All this appears from the title of the Remonstrance, even at the first blush. Hence, to take off any unmerited impression which, such titles might make upon your Honor, to my prejudice, in my answer, by a series of facts stated, I demonstrated those Judges were ignorant of the law, and that, you ought not to place any confidence in their opin- ions. I stated that, Mr. Chief Justice had formerly, though but lately, complained against the Honorable Mr. Lowndes, terming his conduct, as a Judge, " strange, improper, and unconstitutional ;" and that, not- withstanding the opinion of the learned Chief Justice, the Governor dismissed the complaint. I stated, the Chief Justice's declaration in the Court of Chancery, that the Governor there had two voices ; and as a point of law, affirmed the Chief Justices at Westminster, had two voices upon every question, and their associates but one. I stated, the Chief Justice's practice of hearing arguments in Court, and deciding upon the question, by opinions extrajudicially formed, and taken from his pocket. His presiding in a cause, to which he had given rise !- a cause which he had counselled to be defended '-a cause in which he was interested in pecuniary consequence !- let me now add that, it was a cause in which he was personally interested in dignity, rank, and power :- a cause which he would not permit to be argued upon the ground on which he intended to pronounce and did give judgement !- in short, sir, it was a cause in which he could not have taken the oath voir dire, I mean sir, with a clear conscience, had he been called upon only as an evidence. To see a man thus interested, and publicly par- tial-to see such a man, even attempt to preside in such a cause-com- mon sense and modesty is shocked; but, to hear such a man decide in such a cause-reason, integrity, justice, seem fled from among us ! And such were the facts I stated to your Honor, solely relative to the Chief Justice, among many others which I could have particularized ; in the same manner I pointed out Mr. Justice Cosslett's knowledge of the law by shewing that, he charged a Jury that, the Act of Limitation did not bar the plaintiff, because he did not at such a time, know where to find the property in litigation.
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To such particulars the Judges reply, they cannot "trespass upon your Honor's time by staying to refute the many errors, mistakes, and misrepresentations in the first ten pages" of my answer, which they politely term "abusive pages." But. sir! is this a proper reply to-a coufutation of those pages --- a demonstration that they are abusive, and that they contain errors, mistakes and misrepresentations ? Sir! those pages contained heavy charges against those Judges; they stated their official conduct -- only a small part of their misconduct, sir !- the place 'and date of each !- and, with submission, I think it was incumbent on those Judges, to have endeavored at least to have pointed out some of those " many errors, mistakes, and misrepresentations." But, from their neglect to do so, and their hurry to quit the subject-an inference is to be drawn, which is too obvious to leave room for me to point out. What if I should tell your Honor that, after full consultation, study, and deliberation, the Chief Justice construed the Circuit Court Act so as to defeat one of the main purposes of it; that the bar remonstrated to him on the occasion ; that he then admitted an opposite construc- tion. by which he lost £300 sterling per annum of his emoluments What if I should tell your Honor these Judges never lose an oppor- tunity of throwing difficulties in the way of the execution of that Act ? Without doubt. these Judges will say, these also are errors, mistakes, and misrepresentations ; they are nevertheless facts, and the bar bear witness of them.
But, in the reply, the Judges say they had "only humbly repre- sented." I beg leave to observe to your Honor, to the end they may understand, that as what they represented was by an instrument they styled a Remonstrance ; so that word signifies a very strong representa- tion that Freeman's letter represents them "as men totally untit 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, 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 ex- pence of his subjects' rights." By this extract from the Remonstrance, I understood the insinuation in the latter part of it was an inference which the Judges had drawn from the passages in the foregoing part, and that they had extracted those passages from Freeman's letter. I accordingly perused that letter with attention. I could not find either of those passages in it. In my answer, I say che " passages " repre- sented by the Judges to be in "that letter, I have not been able to
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and in it ;" yet the Judges, in their reply, again quoting the passage, "as men totally untit for the offices we hold," declare it is to be found in the nineteenth and twentieth pages of Freeman's letter. Hence, thinking I had negligently perused those pages, I have again read over every word contained in them. I cannot even find any insinuation that they are "men totally unfit for the offices they hold ;" and I am persuaded the author of Freeman's letter could not have had any such idea-because it is known these Judges can read, though I would not swear they understood, English. And, I do verily believe, their ap- prehensions alone formed such a passage in Freeman's letter-conscious that they are "unfit for the offices ther hold."
But, after all, sir, perhaps the Judges mean some other letter from some other Freeman to the Congress; for it is worthy of observation that, the Judges have not yet identified any letter from any Freeman- they did not annex any letter to their Remonstrance, as they ought to have done from motives of but common place regularity in their pro- ceedings -- they knew not whether you had ever seen any letter from any Freeman to the Congress-in their reply, they make a matter of doubt of it-they even now do not know that you have seen any such letter. Yet, these Judges tell you that "your Honor has sufficient evi- dence to induce you to believe him " meaning myself, "to be the author of Freeman's letter;" and that this evidence is taken "from the note in page six" of Freeman's letter ; but. may it please your Honor, they never dreamed of furnishing you with such a letter-they, no doubt, expected that you would politely dispatch your servants from street to lane-from alley to court, throughout the town ; to buy, borrow, or pick up the only evidence upon which the learned and truly methodical Judges grounded their famous Remonstrance ! In short, it is highly presumable, the letter which I have seen, is not the same with that from which they have quoted; since I cannot find in the nineteenth and twentieth pages of the letter which I have, any such passage as that which they declare is to be found in those pages, in the letter which they mean. And still quoting from their letter, they extract this pas- sage: "or make him shake from his purpose, when perhaps, those rights can be maintained only by a temporal suspension of the rules of Consti- tutional proceedings ;" but sir, there is no such passage in the U'ree- man's letter which I have seen. It is true, there is one something suo- ilar, because, most of those words are in it; but having the word "shrink " instead of "shake," and "temporary" instead of " temporal, " the sense is utterly different. Thus, it is clear, the Judges and myself mean different letters under the same title-or, they meant to quote
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fraudulently, to show off Freeman as a nonsensical and ungrammatical writer -- or they unwittingly blundered. If the first, they were inexcu- sably careless; if the second, they were absurdly dishonest ; if the third, it is a mark of their folly. To which of these cases to impute their quotation, I cannot readily determine; charity induces me to impute it to their folly.
But, Freeman deplored the present practice of appointing to the "Council, more strangers from England, than men of rank in the Col- ony !- Counsellors, because they are sent over to fill offices !" This true state of affairs, and this day. so far bears witness of the truth, that, there is not & Counsellor now at the table, but, who took his seat there, because of the office he holds; I say, this true state of affairs, the Judges term, "contemptuous treatment of Majesty !" by which, they say, "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 assistance to his different Governors." To this, I must beg leave to observe that, if the King thinks such Counsellors give the honestest advice, and best assistance to his different Governors, he certainly does a very great injury to the colonists, both in and out of Conneil. And in our Council books, names of Americans-Caro- linians, sir ! can be pointed out, who, without any disparagement of the officed Councellors present, even adding the Chief Justice to them, at least are equal to them, in point of integrity, knowledge, and ability. The position laid down by the Judges, only serves to manifest the con- tempt in which they hold the Colonists.
But, Freeman, treating of the Quebec Bill, asked, " 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 ?" At this the Judges exclaim, "can any thing be more contemptuous. both to the King and to his people !- to liken a Prince who has ever made the rules of the Constitution the measure of his government-to liken such a Prince, to the despotic Monarch of the Turkish Empire, is such an insult as language cannot furnish terms sufficiently strong to express it by." The Judges having thus roundly censured Freeman's question ; what stricture will they pass upon the declaration in Congress to the same purpose on the 26th of last October? The deputies then declared to the people of Quebec that in " the code lately offered" to them, " the substance of the whole, divested of irs smooth words, is --- that the crown and its Ministers shall be as absolute throughout" their "extended Province, as the despots of Asia or Africa."". But Freeman is but a single person, and hence the Judges' zealous exclamation !
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Indeed, sir, it is but a mere group of words-allow me to sift them by the means of a few syllogisms.
It is an inexpressible insult to the King, to liken him to a despotic Monarch. Because,
The Judges say, the King " has ever made the Rules of the Constitu- tion the measure of his Government:"
The despotic monarchs Vespasian, Titus, and Traian, I say, ever made the rules of their Constitution, the measure of their Government : there- fore it is an insult to the King, " to liken" him to a despotie Monarch !
Again. The despotic Monarchy of the Turkish Empire, has produced Princes, who governed according to the rules of their Constitution; and have been ranked among the most renowned Sorereigns in Europe :
The King "has ever made the rules of the Constitution the measure of his government;" therefore, it is an insult to the King, to compare him to a Turkish Sovereign !
But, again. By the laws of Turkey, the Sultan is absolute over the Provinces in the East :
By the Act of Parliament, the King is absolute over a Province in the West :
By the rules of their respective Constitutions, each Sovereign thinks, he acquired these absolute powers : therefore it is an inexpressible insult to the King, to liken him to the despotic Monarch of the Turkish Empire "'
This is excellent logic, sir ! the insult to the King, is pointed out in a truly inexpressible manner ; for in the Judges own words, it " is such an insult as, language cannot furnish terms sufficiently strong " (that is, clear) "to express it by." However, the Judges say, " every loyal British heart, though wounded by the calumny, will vindicate our Suv- ereign from the foul aspersion." Of this task, these Judges have very prudently exonerated themselves-their hearts, your Honor knows, are Irish. I only mention this to shew how prone these Judges are to expose themselves to ridicule.
But, the reply says, your Honor does not want the aid of a Jury to determine upon the conduct of the King's servants; or to inform you when it is proper or improper to dismiss them from their royal ma-ter's service." "Would Mr. Justice Drayton think it necessary before be discharged a bad servant, to have the verdict of a Jury for so doing ?" To this, with all due submission, in point of law I rejoin that, your Honor cannot legally determine upon my conduct -- charged with having written a libel, but, by, " the aid of a Jury "-for I am a Freeman. Your Honor's power over me is circumscribed by the law; and, so far
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are you from having lawful power, as yet, to determine upon my conduct in this instance ; that. if your Honor was but to say that, I have written a libel-you would, in point of law, be exposed to an action at law. But the question put, relative to my servant, is no less futile than it is indecent, to compare a Judge under the English law, to a Carolina slave. My servants, sir, are my slaves ; and, I, therefore, can legally determine upon their conduct, in all cases, without the aid of a jury; for, car law has not even an idea of determining upon the conduct of a slave. by a trial by jury. However, these upright Judges attempt to teach your Honor, that the King has as much power to determine upon my conduct as I have to determine upon the conduct of my slave. They liken a Judge in this country to a slave-they being Judges during pleasure, profess that the King 's their " Master." A title ! of the most alarm- ing nature, to the good people of this colony. A title ! by which the King is not known in our law. A title! of mere mockery to his Majesty. A title ! which, demonstrating that, these Judges are prone to a servile adulation-reflects the utmost infamy upon them.
So he, who poverty with horror views, Who sella his freedom in exchange for gold, (Freedom for mines of wealth too cheaply sold) Shall make eternal servitude his fate, And feel a haughty master's galling weight.
But the reply says " the third clause of his answer is that. a jury only ean legally determine, whether the reflections contained in the publica- tion, have a direct tendency, to raise groundless fears in the minds of his majesty's subjects. Our reply is, that, should an action be brought against him, to punish him for the crime of libelling, it would be the province of a jury to ascertain that point." Does your Honor observe how pointed this reply is! How close it runs with my answer! It. runs so close that, there is not any disagreement between them, however close the reply is, and however drawn to a point. It puts me in mind. of a familiar dialogue in Tristram Shandy. Mr. and Mrs. Shandy, in a bed of Justice, were talking of putting Tristram into breeches; and the old gentleman "pressing the point home to her,"
"They should be of leather, said my father, They will last him, said mother. the longest. 'Twere better to have them of furtian, quoth my father, Nothing can be better quoth my mother. Except dimity,-replied my father. . 'Tis best of all, -replied my mother."
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In short, nothing equals the smartness and importance of this reply by the Judges, but their astonishing quickness of thought, and deep penetration in finding out, and their sagacity in thinking it necessary mo observe to your Honor that, an "opinion hazarded," is "som- what hazardous."
But, "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 roiun of Charles the First? There is not the most distant similitude btwpen the two periods." To this I reply, may it please your Honor, there 18 a very striking similitude ; and, although, I shall demonstrate this, from facts delivered down by history and recent facts known throughout North America; I shall not be apprehensive that in thus proving Five- man's position, to be a just description of the present time, that, I shall betray a want of regard to my country, or affection and respect to the King.
Freeman alludes to the grievances under which the people of England labored about the year 1628. The historian, Hume, declares these were "" illegal taxes," "violation of property," and " billeting soldiers."
Your Honor knows that America now resounds with the groans of the people, that at this time they labor under the same grievances , need I tell your Honor, that by the Tea Act, the Americans complain of illegal taxation; by the blockade of Boston, of violation of their property ; by the act for providing quarters for his Majesty's troops in America, of billeting soldiers contrary to law ?
In the year 1628, the people of England declared such things were illegal, because done without the consent of their Representatives of their own election in Parliament.
At this time the people of America, declare such things applied to them are illegal. because done by a Parliament in which they have Hat any Representation of their own election-or, in the same teruis with the people of England, because done without the consent of their Repre. sentatives of their own election in Parliament.
Is not the similitude between the two periods, close and strin dir. notwithstanding the learned declarations by the Judges-"there : ~ Jul the most distant similitude !"-Henceforth, can there be any consilence in their knowledge, or integrity ! But let us proceed in investigat nu a further similitude.
From the historian, Hume, Freeman said, that in England in the year 1623, "there was reason to apprehend some insurrection from the discontents which prevailed:" and that, in America, the present period
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is, "a time threatening, not insurrection from discontents, but-a civil war from despair." To this the Judges say, "the present unhappy discontents," in America, cannot "be, with any degree of truth, com- pared to those" during "the reign of the unhappy Charles "" From this I comprehend, that the times then, to which Freeman alluded, were horrible in comparison of the present-but I mean to demonstrate the reverse; and this will be self-evident, when I shall have proved that the present is a time threatening civil war in America. To this purpose allow me to lay before your Honor some extracts from American State papers. On the 24th of May last, the Burgesses of Virginia declared that the Boston Port Bill threatened "the evils of civil war."
On the sixth day of September last, the whole people of the county of Suffolk, in the colony of Massachusetts Bay, "Resolved, That the for- tifications begun and now carrying on upon Boston Neck, are justly alarming to this county, and give us reason to apprehend some hostile intention against that town, more especially as, the Commander-in-Chief has, in a very extraordinary manner, removed the powder from the Magazine of Charles Town; and has also forbidden the Keeper of the Magazine at Boston, to deliver out to the owners, the powder which they had lodged in the said Magazine."
In answer to the address of the Selectmen of Boston, General Gage, on the ninth of September, replied, " When you lately applied to me, respecting my ordering some cannon to be placed at the entrance of this town, which you termed the erecting a fortress, I so fully expressed my sentiments, that, I thought you were satisfied, the people had nothing to fear from that measure, as no use would be made thereof, unless their hostile proceedings should make it necessary."
To the address of the people of Suffolk, the General on the 12th of September, replies, "I would ask what occasion there is for such num- bers going armed, in and out of the town, and through the country, in an hostile manner? or, why were the guns removed, privately in the night, from the battery of Charles Town."
Hence, we see the King's General declare, that he apprehends hos- tilities from the people-the King's subjects ! The General, therefore, fortifies advantageous posts-we know he collected troops from all the colonies-he seizes the powder at Charles Town; nay, his fear of a civil war is so lively, that he violates private property, laying his armed hands upon all the powder in the Boston Magazine. On the other part, the people of Massachusetts Bay refuse obedience to the British laws; and frustrate their operation by their insurrections. Juries will not serve under them. Counsellors will not act under them. The Gover-
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nor dares not allow the new modelled legislature to meet. The people declare they apprehend hostilities from the King's General ; they there- fore in great numbers go armed, in and out of the town of Boston. and through the country in an hostile manner-they seize cannon where they can find them-we know they daily train themselves to arms-we know they lay hold of the public taxes. We know, sir, the General has declared that the people have assumed the powers of Government inde- pendently of and repugnant to his Majesty's Government. And, to chew that all America are parties to. and approve their conduct, need I tell your Honor of the Resolution of the late Congress of all America from Nova Scotia to Georgia ! " that they do approve of the opposition made by the inhabitants of Massachusetts Bay, to the execution of the late Acts of Parliament; and, if the same shall be attempted to be carried into execution by force, in such case, all America ought to support them in their opposition !"
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