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 8
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Does not all this demonstrate that, in the language of Freeman. the present is "a time threatening civil war!" Is it not a truth, that, affairs in America, are tending to a state of utter distraction-speelily to display the horrors of civil war! It is a melancholy truth, that our times wear all those appearances prognosticating civil war, which ever ushered in any civil war; yet our Judges prefer the present time, to that about the year 1628-and they complete their characters, by de- elaring " there is not the most distant similitude between the two periods !''
But, " had Mr. Justice Drayton, sir, attended to the manifest dis- tinction between an action instituted against an offender in a Court of Law, in order to bring him to punishment for his crime, and a com- plaint made to his Master, representing him as unfit to be continued longer in bis service ;" "he would have seen your Honor's power over him, without the intervention of a jury."
There is no doubt, sir, but that your Honor has power, legally, to dismiss me by your free motion; but, when it has been remonstrated to you, by two of the King's Judges, that I have written a libel against. them, in that case, I do aver, in point of law, that your Honor cannot dismiss me upon a determination by your Honor that I did write the libel; for the doing of which only the Judges represented me "as unfit to be continued longer in the office of a Judge." Seeing that ly the law of the land you cannot pass upon me but by due process of law ; and I believe these Judges will scarcely be so mad as now to con- tend that the points whether or not I wrote the publication they lay to my charge, and whether or not it is a libel are now in a train of investigation
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by due process of law. That I am the author of the publication, they. as Judges, say, "from the note in page 6 there is no room to doubt of it, and we expect your Honor will be of the same opinion." Very constitutional doctrine, indeed ! If such evidence only, and no other. has been offered to your Honor, is sufficient to condemn a man, and upon a criminal accusation too, surely my Lord Coke would never have exclaimed, dificillimum est invenire authorem, infumatori scripture ;* for a writer of a libel had nothing more to do than, in some part of it. to insert another man's name, intimating such man to be the author. Thus the libeller would, not only most easily escape punishment, but he might draw down ruin upon the head of his enemy, thus liable to be condemned upon the most frivolous evidence. When the blasphemous notes on the Essay on Woman, were by the real author, ascribed to the Bishop of Gloucester, did any body dream of making use of such evi- dence to prove, that the Bishop was the author of notes? But, with these things, these Judges are utterly unacquainted, otherwise, weak as I hold them to be. I can scarcely suppose they would have been so weak, as to have offered a note in a publication, which they term a libel. to prore to your Honor, and that so clearly, too, as to leave "no room to doubt " that I am the author of it. Here two reflections press upon me; allow me to lay them before your Honor.
When we consider, that these Judges knew the publication was "a libel against his Majesty, his Government, his Ministers, and his Parlia- ment"-a publication in a style, as they declare, "sounding the Trumpet of Rebellion ;" considering they had in their own hands, such evidence as left "no room to doubt " that I am the author of that pub- lication ; considering their self-declared zeal for the King; I say, con- sidering these things, if I may hazard an opinion, is it not somewhat. surprising, that these "loyal" Judges, "though wounded by the calumny,'' yet that they did not take any step to "vindicate our sore- reign from the foul aspersion " Is it not a little strange, that they did not, ex officio, order a prosecution against me, rather than plan a Re- monstrance to your Honor: Aye, sir! and to shew that they were "fit for the offices" they " hold"-rather have ordered a prosecution against the printer ! Is not an omission of any step of this sort, a gross failure of their duty to their "royal master!"' I say, sir! it is a failure of their duty as Judges. They could feel for themselves-they could complain to your Honor of imagined injuries-they could talk of insti- tuting "a suit against." me " for damages ;" but, may it please your
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Honor, in the midst of their personal cares, they lost their attention to the King's business -- they forgot. or they designedly neglected to punish him whom they declare has libelled the King-they took no step to " vindicate our Sovereign from the foul aspersion "' Their zeal for the King. burst forth indeed, and it was a joint effort; but it was Vox et pruterea nihil!
Having thus arraigned and tried these Judges, I now draw to the conclusion of the scene, to pronounce the law upon their conduct.
As a barrier against the oppressive steps of the Remonstrants, and in opposition to their crude dictums, I place the laws of our country. I shall state two points of law to your Honor-either of which, with all due submission I say it, must be fatal to their proceedings.
Your Honor will be pleased to observe, that the special matter, or complaint contained in the Remonstrance is, that Freeman's letter to the Deputies is "highly injurious to your Remonstrants " by represen- tations therein set forth. To this special matter I formed an answer, to which they put in a reply stating new matter of complaint against me. To shew that I have not the smallest particle of affection or respect for the King, they say. Freeman compares "the present time with the reign of Charles the First." To shew my contempt "both for the King and his people," they say, Freeman likens the King, to the "Monarch of the Turkish Empire." No part of this special matter appears in the Remonstrance. However, I am not surprised that such positions, among many others which are similar, appear in the replication. In stating such things, I will charitably suppose, it may be probable. the Judges thought, they did right; but, sir, Mr. Justice Blackstone declares such a proceeding is wrong. Treating of pleading, he says "it must be carefully observed not to depart, or vary from the title or defence, which the party has once insisted on. For this, which is called a departure in pleading, might occasion endless altercation. Therefore, the replication must support the Declaration without depart- ing out of it." Thus, sir, it appears, that the Judges in stating new matter in the reply, have made a departure in pleading; and I now beg leave to lay before your Honor, the law upon that point.
It is laid down: 36 Henry 6: 30. " If the Plaintiff. in his suit de- parts against the party, he shall abate his own writ." Such being the law, upon a departure in pleading, I am now to demonstrate, that it is applicable to the present case. The Remonstrance, is the writ or dovia- tivn, stating the complaint ; and the replication must support the Re- monstrance, without departing out of it: but the judges, who in this case are the Plaintiffs, having in their suit departed against the party,
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by consequence in point of law, they "shall abate" their Remonstrance. which in the present case, is in place of their "own writ."
It is true, the Judges in their reply, tell your Honor, that "was this a proscention in a Court of law." in point of law, I "would be right ;"' but that my law is not applicable to the present prosecution ; yet I trust your Honor will remember, this latter part, is in effect, contradicted, retracted and destroyed in the latter part of their reply. There, indeed they make a faint attempt to ridicule me, little imagining, that I should be able to turn that very ridicule against themselves ; but I shall now precipitate them into their own pit.
In my answer, may it please your Honor. in general terms. I sub- mitted to you, that, " in this case," " the laws and constitution, have not vested in your Honor, an original jurisdiction " " so as to hear, Judge, and finally determine the merits of the Remonstrance;" and under such an idea, I confess, I did not think myself bound to observe any particular rule, by which I should form my answer. On this ground, the Judges, in the latter part of their reply, in ridicule, call me " a special pleader." They say, my method "is new, and is an inversion of all the rules of law pleadings." And they tell your Honor the form of proceedings before you in the present case, ought not to be exactly the same, as in a Court of law; for they, in express terias, lay down the method of pleading, which I should have observed. Hence, I form this conclusion, in which, I think your Honor cannot differ with me. As the Judges have declared and pointed out, that the method of plead- ing before your Honor ought to be the same, as that which is used in a Court of Law; so they cannot, at least with any shadow of decency, object to the pleading's before your Honor, on their part, being regulated by those rules. which regulate pleadings in a Court of Law. Thus, I do most humbly submit to your Honor, that the learned and able Judges have made a departure in pleading, and therefore, they have abated their Remonstrance. In the language of the reply "the student who reads with attention, will go to the bottom," and " will consider every circumstance; " we are yet to know that the Judges ever were such students.
But, may it please your Honor! I do not wish to press the point, touching the abatement of the Remonstrance. I feel some compassion for the Judges-I will not grasp at every opportunity, to cover them with ridicule. I, therefore, proceed to the second point of law; which I purpused to state to your Honor.
The Remonstrance-describes Freeman's letter to be a libel-it declares I am " the author of it," and, therefore, it submits to your Honor,
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whether I am "a proper person to serve " ""in the office of a fud_e." In my answer, I stated, that your Honor had not legal power " to hear, jadye and finally determine the merits of the Remoustrance." And in their reply, the Judges say, that Freeman's letter "is according to every legal idea, a libel against his Majesty, his Government, his Min- isters, and his Parliament, we humbly submit to your Honor's wie low and judgment." But sir! although. to use the language of the lie- monstance, the King's Judges are willing "to increase his power, at the expense of his subject's rights :" and thus, as an offering of wert savor, to the prerogative to sacrifice the trial by Jury, "the best pro- servative of English liberty." as Mr. Blackstone terms it; yet, sir: the laws of the land have not, as yet, submitted it " to your Honor's wis- dom," legally to give " judgment," that Freeman's letter is a libel, and that I wrote it. Such were the two points to be legally established, before any consideration could be had upon the third point-the sus- pension to which the Judges alluded. Hence, if I shew to your Honor, that you cannot constitutionally take cognizance of the first two points, it will then naturally follow, that the third cannot be a point for your consideration, in consequence of the Remonstrance. And that your Honor cannot legally determine upon the first two points, allow me to shew from the authority of the 29th Chapter of Magna Charta.
" No one shall be taken, or imprisoned, or deprived of his freehold, or liberties, or free customs, or be outlawed, or banished his country, or in any sort destroyed ; nor will we pass upon him, or condemn bim un- less by lawful judgment of his Peers, or according to the law of the land."
Upon parts of this Statute, allow me also to lay before your Honor. my Lord Coke's reading.
Or outlawed .- " Put out of the law-or deprived of the benefit of the law." And shall I enjoy the benefit of this law, if upon an acc .. sation against me of a criminal nature, your Honor shall " pass upon" me independently of a trial by jury ?
Or in any sort destroyed .- Suffer " by any manner of means tending to destruction, and every oppression against law, is a kind of destruction.
Or, according to the law of the land .- " Due process of law." And if your Honor should now "pass" upon the question, whether I guilty of the charges against me, which appear in the Remonstraure, would your Honor in doing so, pass upon me by due process of las :
I most humbly apprehend, no; and I trust your Honor has too much learning, too much virtue, too great veneration for the sovereign boas of your country, to be induced to violate the great charter of our le
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entire. That charter speaks in the person of the sovereign; you. sir, have the honor to represent the sovereign ; therefore, in the words of the charter, I am confident you will not " pass upon " me, " unless by lawful judgment of " my " peers, or according to the law of the land."
Upon the whole, may it please your Honor, Magna Charta, thus se- curing to the subject a trial by jury, I cannot entertain an idea that your Honor will take any step to judge, in the present case, inde- pendently of a trial by jury. The learned Blackstone says, " every new tribunal erected for the decision of facts, without the intervention of a jury, is a step towards establishing aristocracy, the most oppressive of absolute governments." The learned Judge proceeds, and I need not press the doctrine upon your Honor : "It is, therefore, a duty which every man owes to his country, his friends, his posterity, and him- self, to maintain, to the utmost of his power, this valuable consti- tution in all its rights; to restore it to its ancient dignity, if at all impaired; to amend it whenever it is defective; and, above all, to guard, with the most jealous circumspection, against the introduction of new and arbitrary methods of trial, which, under a variety of plau- sible pretences, may, in time, imperceptibly undermine this best pre- servative of English liberty."
Upon such principles of law, I do most humbly submit to your Honor that the present prosecution, carried on by the remonstrating Judges, tends to establish a "tribunal for the decision of facts without the in- tervention of a jury ; that such a daring attempt "is a step towards establishing " among us " aristocracy, the most oppressive of absolute governments ;" that therefore, the conduct of these Judges ought to be watched "with the most jealous circumspection ;" and that their Remonstrance ought to be dismissed as being calculated insidiously to undermine the trial by jury-the Palladium of American liberty.
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CHARLES TOWN, S. C., Monday, Feb. 13, 1775.
This day his Majesty's Council, consisting of three Placemen, pre- sented the following Address to his Honor the Lieutenant-Governor. To the Honorable William Bull, Esq., Lieutenant Governor and Com- mander-in-Chief, in and over his Majesty's Province of South Caro- lina :
MAY IT PLEASE YOUR HONOR :- His Majesty's dutiful and faithful subjects, the Council of this Province met in General Assembly, with reluctance approach your Honor on a subject of so disagreeable a nature
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i- a complaint against one of their Members, the Honorable William Henry Drayton, Esq.
Although the general tenor of Mr. Drayton's conduct for a consider- ble time past would not only have justified, but seemed to call for a representation from this House, to your Honor; yet anxious to avoid every measure which might appear to have a tendency to infringe upon the rights of an individual, or the privileges of a Member. we have hitherto delayed to lay before your Honor our just cause of complaint, and have submitted to many insults and indignities offered to individual Members, as well as outrageous breaches of privilege committed against this House.
But as we are now thoroughly convinced that Mr. Drayton's conduct has been, and still continues to be influenced by a determined purpose, as far as in him lies, not only to destroy all confidence of the people in this House, and to bring it into contempt, but to subvert the Constitu- tion and unhinge government, to be longer silent would be highly crim- inal ; and we conceive ourselves bound both by principles of duty and affection to his Majesty, and justice to ourselves, humbly to request your Honor will be pleased to suspend the Honorable William Henry Drayton, Esq., from being a Member of his Majesty's Council in this Province.
In the Upper House of Assembly, the 11th day of February, 1775. By order of the House, JOHN STUART.
To which his Honor the Lieutenant-Governor, was pleased to give the following answer :
HONORABLE GENTLEMEN :- Before I take any step in consequence of this address, I desire you to lay before me some of the facts upon which your complaint against Mr. William Henry Drayton is founded ; and upon due examination thereof, and of his answer, I shall take such measures as are agreeable to justice, and for the service of his Majesty.
WILLIAM BULL.
Feb. 13, 1775.
Before signing the above address, Mr. Drayton claimed leave to enter his protest against it, which is as follows :
Dissentient : Because the Hon. John Stuart, Esq., Superintendant of Indian Affairs, being a Counsellor, not vested with the powers of the ancient twelve, ought not to have any precedence among Counsellors upon that establishment, vested with superior powers; and therefore,
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ought not, as eldest Counsellor present, to sign any paper in Council ; an act manifesting a possession of superior rank. Mr. Stuart is incapa- ble, as eldest Counsellor, of taking rank as President and Commander- in-Chief of the Colony; and, in my opinion, this incapability and the appointment to the Council in cach Colony in which he is Superinten- dant, obviously demonstrate, that the appointment was calculated to enable him the better to execute the duties of his office, and not in- tended to authorise him constantly to interfere in the merely domestic Legislative affairs of any such colony, in which, the nature of his office or pleasure should, at any time, make his presence necessary or con- venient.
2. Because, I am of opinion, the address having a direct " ten- dency to infringe upon the rights of an individual." and " the privileges of a Member," is therefore, arbitrary, unparliamentary, destructive of freedom of speech, derogatory to the ancient Dignity of the Council, and a contemptuous insult to the people of this colony.
3. Because, I have just grounds to be assured, the measure will not only " destroy all confidence of the people in this House, and bring it into contempt " (to effect which, the address declares I am with "a determined purpose ;" and to prevent which, I even here give evidence that I. aim; although the House have been losing that confidence, and have been falling into contempt, in proportion to the increase of Place- men in it, and display of their dependance and abilities), but that it will otherwise be detrimental to his Majesty's real service; inasmuch, as the natives of this colony will be greatly discouraged from serving his Majesty and the public in a Council, from which, they would run the hazard of being suspended, even by the machinations of three members who are Placemen. Indeed, already are natives almost totally discour- aved from sitting in Council; and this is manifest when we reflect that there are only eight Counsellors in the Province, of which number, five are not only Crown Officers, but strangers.
4. Because the complaint being only of a general nature, it is to be presumed, nothing in particular could be stated ; and therefore, in my opinion, the address must be considered as of a very frivolous nature.
5. Because the address bearing a position inconsistent with matter of fact, it will reflect the utmost infamy upon the Chief-Justice who intro- duced it; a lond which I could wish him to avoid. possessed as I am, with a zealous inclination to promote his Majesty's real service, too liable to be imperled by publie odium against un officer acting under a total loss of reputation. The address asserts, that " the general tenor of Mr. Drayton's conduct for a considerable time past" shews that he " has been, and still continues to be influenced by a determined purpose as
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far as in him lies," "to subvert the Constitution and unhinge Govern- ment ;" hence, by not having limited the retrospect, the assertion most strongly insinuates, that my conduct has been of such a dangerous tenor even during several years. But this is an assertion, which not only wantonly, but disrespectfully militares against the truth, evidenced by his Majesty's royal sign manual and Privy Seal on the 27th day of February, 1:71; when the King was graciously pleased to declare him- self. "well satisfied with the loyalty, integrity and ability of our trusty and well beloved William Henry Drayton, Esq.," meaning myself; and also, by royal letters patent, under the great seal of this Province, so late as the 25th day of January, 1774, declaring my loyalty, integrity and ability, and constituting me to be one of the Assistant Judges of this colony ; an office which I possessed until the ninth day of Decem- ber last, when to make room for a gentlemen sent from England, and regularly called to the bar, I was superceded without the least censure, notwithstanding a most violent complaint by the Chief Justice to his Honor the Lieutenant-Governor, against me, touching an anonymous publication addressed to the late Continental Congress. Which com. plaint, notwithstanding my most pressing instances, that it should be brought to issue, was on the sixth day of January last, by unanimous advice of a Council composed entirely of Crown Officers, " dismissed without any censure upon any of the parties."
6. Because the address is improper even in its main purpose ; for as it charges me with " a determined purpose to subvert the Constitution and unhinge Government." if I am guilty, a suspension is a punishment by no means adequate to the offence. In my opinion as the Chief Jus- tice knew the man possessed of " a determined purpose," so criminal and so dangerous, for him to allow that man to continue uninterrupted by the due course of law, was to betray the trust reposed in him by the King. For the Chief Justice would have demonstrated his duty to the King, and his own knowledge and abilities as a Judge, had he, ex officio, ordered a prosecution to bring me to condign punishment, rather than by having planned an address to move the extraordinary powers of Government to inflict a slight punishment. The rule, nec Dens in- tersit, nisi dignus indice nodus is as applicable to the political as it is to the poetical drama. Upon the whole, but for the reasons assigned, I should have been extremely well pleased with the address, because it my opinion it bears honorable testimony of me. The Placemen in Council declare, that i have "a determined purpose to subvert the. Constitution ;" hence I am confident, the people will be assured that I am really defending it with vigor.
WILLIAM HENRY DRAYTON.
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REPORT OF THE COMMITTEE OF THE PRIVY COUNCIL, SITTING AS AN UPPER HOUSE OF ASSEMBLY, AGAINST WILLIAM HENRY DRAYTON.
The Committee to whose consideration the answer of his Honor the Lieutenant-Governor to the address of this House dated the 11th instant, was referred. Report :
That your Committee recommend to the House to lay before his Honor the Lieutenant-Governor, the following instances of Mr. Drayton's conduct, which, amongst many others, in the opinion of the House, have evinced bis intentions, as far as in him lay, to destroy all confidence of' the people in this House and to bring it into contempt.
That Mr. Drayton by entering captious and frivolous Protests against the proceedings of the House, and therein misstating the arguments used by the Members of the House, and suggesting as reasons for the foun- dation of the determinations of the House, matters, which though per- haps taken notice of in the debate, have had no influence upon the question, and afterwards causing the same to be printed in the public newspapers, without the leave of the House, bas thereby been industri- ously endeavoring to destroy all confidence of the people in this House and to bring it into contempt.
That Mr. Drayton's enmity and ill-will to a particular Member of this House, has frequently prompted him to throw out very illiberal charges and invectives against that Member, entirely out of the course of order, and in manifest violation of these rules of decency and moderation, which are essentially necessary to be observed by all deliberative assem- blies ; and that by retailing, without doors, what, upon these occasions has passed in the House, he has endeavored to bring the House into contempt.
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