SC Historical Society: The Answer of William Henry Drayton to "The Remonstrance of Thomas Knox Gordon, Esq., Chief Justice, and Charles Mathews Cosslett, Esq.,..."

The Answer of William Henry Drayton to "The Remonstrance 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-Governor Against "The Honorable William Henry Drayton, a Member of His Majesty's Council and One of His Assistant Judges."

[MSS. of W. H. Drayton]

To the Honorable William Bull, Esq., Lieutenant-Governor and Commander-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 you two days before by Mr. Chief Justice and Mr. Justice Cosslett, touching 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," 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 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 remonstrance 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 indulgence, if in tracing the meandering of my seniors in office, my answer be therefore drawn into some length.

As one event, 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 complaint against the Honorable Rawlins Lowndesthen one of the Assistant 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 remonstrance, in my opinion, are common-place positions, absolutely unconnected 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 wordgranted.

The fifth section, sir, is the first of moment to their Honors, or to myself. It sets forth, "that it would be unbecoming your Remonstrants 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? 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 Honorthat 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 Courthe at once silenced the learned Chief Justicefor, 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 Leigh, 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 sua causa." But, sir, every person does not understand law. The Chief Justice took his seat upon the Benchpresided during the arguments upon the motion, which came on to be heard the sixteenth of October, and when they were concludedout of his pocket he very equitably drew his opinionfor he generally hears arguments prepared to answer them from an opinion in his pocket, and taking the leadpronounced his written opinion which he had drawn up at his Chambers! the motion was quashed. But, notwithstanding the opinion thus extra-judicially determined and drawn up in form, and this appearance of being "judex 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 unbiassed in opinionimpartial 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 indisputably 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 charging 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 violates every principle of lawI shall mention only oneignorantia legis neminem excusat.

Farther, that on the eleventh of August last, Richard Howly, a native of Irelanda 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 full persuasion that he had done enoughand no man can pretend to say that the spirit and meaning of the rule has not been preserved." Thus, sir, I stand instructedthat 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 principal inhabitants of this town; it was I assure your Honor, without the least astonishment, I saw your learned Remonstrants in their sixth section, gravely hope, "that if they did not deserve much praise, that they would at least escape without censure."

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 incapable 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 termssymptoms 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 decorating the persons of Mr. Chief Justice and Mr. Justice Cosslett, and elevating them into consequence and ease, prevents my retorting any epithets of contempt upon themmy veneration for your Honor, incapacitates me from hurting your sensibility, with a use of abusive appellations respecting men connected with your Honor, by being in eminent public stationsand my own feelings, sir! effectually bar me from condescending to adopt language unbecoming the mouth or pen of a gentleman. 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 consequence, 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 peopleand 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 imprisonment of Thomas Powell, the printer, and the writs of assistance evidence strongly in their favor.

At length, may it please your Honor, I am arrived at the cause of the Remonstrance, "A letter from Freeman of South Carolina to the deputies of North America." Hinc illae lacrymaethe complaints of their Honors the Remonstrating Judgesand, "let the stricken deer 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 questionthey 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 anything injurious to themselves. However, if they really destroy their own reputations, the act 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 mehighly dangerous to me if well founded, for they describe a libel of a most aggravated nature, I cannot be too careful to employ every argument to parry their strokes. Diffident of my own abilities, allow me, sir, to call in the friendly aid of a very elegant poet.

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'd (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 birds,
Whose wisdom lies in looks, not words,
Blund'rers, who level in the dark,
And always shoot beside the mark."
He names not me; but these are hints,
Which manifest at whom he squints.

The Pye, to trust and pow'r preferr'd,
Demands permission to be heard.
Says he, prolixity of phrase
You know I hate. This libel says,
Some birds there are, who prone to noise,
Are hir'd to silence wisdom's voice,
And skill'd to chatter out the hour,
Rise by their emptiness to pow'r.
That this is aim'd direct at me,
No doubt you'll readily agree.

Ye 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 air,

It would be unbecoming 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 Remonstrance.

Libels and libellors 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 errorsand 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 justonly a jury can legally determine and ascertain its criminality.

Secondly. Your Remonstrants having without doubt equitably determined "in propria 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 tendency "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 person; 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 extrajudiciallv 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 note in page 6" is such evidence 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 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 resortbefore they have legally ascertained that I have been guilty of any offence! In short they have in the same breath accused meevidenced against meascertained my guiltadjudged the nature of itand, in angry and passionate terms against me, desired my condemnation and punishment! Alas, sir! this is a more violent prosecution than ever was exhibited in the Star Chamber! But I must stop, the remonstrating 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 excursions, 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 cognizable 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!

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 instigating 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. H'Y. DRAYTON

Charles Town, South Carolina, October 3, 1774.

(From Documentary History of the American Revolution, by Gibbes, Volume 1, pp. 41-49)

Doc ID: Gibbes, v. 1, p. 041
Date: 10/03/1774

Last modified: 7/8/03/CLN.

URL: http://www.southcarolinahistoricalsociety.org/displays/RevWar/archives-online/Gibbes__v__1__p__041.html