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The Reply 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 Said Province, to the Answer of William Henry Drayton, Esq., One of the Justices of the Said Court. [MSS. of W. H. Drayton 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 pages of the answer, all the matter thereof, except one assertion in page nine being entirely foreign to the subject of the Remonstrance; from which two plain questions only do arisefirst: is Mr. Justice Drayton the author of Freeman's letter? if he issecondly: is such a publication consistent with the duty he owes the King as one of his servants? 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 different 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 judicially, or extrajudicially on the subject. We have only humbly represented 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 publication. 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, his Government, his Ministers, and his Parliament. We humbly submit 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 conduct 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 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, representing him as unfit to be continued longer in his servicewe 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 conscienciously refuse to determine on his conduct, without such a sanction? Surely not! But this power which he would doubtless claim himself, he 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 extrajudicially declared that these charges are highly injurious to usbut 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 propria 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 clause of his answer is, that "a jury only can legally ascertain whether the reflections contained in the publication 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 libeling, t would then be the province a jury to ascertain that point. As to the opinion hazarded by the gentleman of what a jury might think, upon such an occasion, it being only an opinion requires no answerthe opinion, however (to use his own phrase), is somewhat hazardous and might possibly turn out 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 sacred 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 King's servants. The gentleman, with some surprise, says this charge against him describes a contempt and misprison against the King's person 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 subsisting 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 content with this false and disgusting picture of our most gracious sovereign "Freeman" next compares him to the Turkish Sultan! and asks "what creator 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 Constitution the measures of his government, and in the very instance mentioned 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 strong 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 property of the American are now at the pleasure of a despotic 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 proceedings. 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 assistance to his different Governors. 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 grievance! 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 despotic? for your Honor knows, that the King is a component part of the Parliament, and of course must be included in, and meant by the term Parliament. It would be tedious to point out every part of this very extraordinary 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 extrajudicially declared, Mr. Justice Drayton to be the author of "Freeman'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: Firstbecause 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 declarationbut we have declared or determined him to be the author without any legal evidence. It is certainly true, sir, we have in our minds determined 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 Drayton 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 circumstance, 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 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 evidencebut 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 prerogative 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 Governor 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 in question contains indecent reflections on the King and his Judges, and we have set forth what we conceive to be the tendency of these reflections, but we have moved for no punishment against Mr. Justice Drayton 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 Remonstrance) that he is the author of the publication, and we conclude with submitting it to your Honor, whether a man capable of such a publication, 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 considered, 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 answers. The honorable 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 lawthat being finishedhe 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 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 overruled, the judgment of the Court is, that the defendant respondeat ouster, or shall put in a better plea, so the honorable gentleman has ended where he should have begun! and unfortunately by beginning in the wrong place, and putting in an issuable plea, he has in fact admitted your Honor's power, and precluded himself from pleading to the jurisdiction, however valeat 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 Drayton'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 (From Documentary History of the American Revolution, by Gibbes, Volume 1, pp. 49-55) Doc ID: Gibbes, v. 1, p. 049 Date: None [12/1/1774?] |
Last modified: 7/8/03CLN.
URL: http://www.southcarolinahistoricalsociety.org/displays/RevWar/archives-online/Gibbes__v__1__p__049.html