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The Rejoinder Intended To Have Been Delivered by William Henry Drayton [MSS. of W. H. Drayton] MAY IT PLEASE YOUR HONOR: Standing here, I feel myself agitated 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 characterthat 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 Remonstrants 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. I well know the nicer sensations of delicacy are apt to take alarm at circumstances by which it may be thought a Judge may be apt to be 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 requireincidit 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 watchit is even listeningto 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 the 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 juncturethat very day taken ill with the goutas 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 object of the Remonstrance. At once, that the Chief Justice may derive no advantage from his critical illness; that the argument maybe preserved upon its original foot; and that I thereby may the more clearly demonstrate the complaint contained in the Remonstrance was unconstitutionally laid before your Honor; and that the Remonstrance was ineffectual, on any principles of reason, law, or the Constitution, to accomplish the end it had in view. In order to sound the depth and to ascertain the force of the oppressive torrent, flowing from the pens of the Remonstrants, I beg leave to begin, at the source of the streamthe 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 colonyand secondly, as that, the matter of the complaint, having been collected, canvassed and digested, by the 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 opinions. 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, notwithstanding 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 partialto see such a man, even attempt to preside in such a causecommon sense and modesty is shocked; but, to hear such a man decide in such a causereason, 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. 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 toa confutation of those pagesa 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 conductonly 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 subjectan 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 construction, by which he lost £300 sterling per annum of his emoluments. What if I should tell your Honor these Judges never lose an opportunity 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 represented." 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 representation that Freeman's letter 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, 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 expense 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 the "passages" represented by the Judges to be in "that letter, I have not been able to find in it;" yet the Judges, in their reply, again quoting the passage, "as men totally unfit 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 held any such ideabecause it is known these Judges can read, though I would not swear they understood, English. And, I do verily believe, their apprehensions alone formed such a passage in Freeman's letterconscious that they are "unfit for the offices they 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 Freemanthey did not annex any letter to their Remonstrance, as they ought to have done from motives of but common place regularity in their proceedingsthey knew not whether you had ever seen any letter from any Freeman to the Congressin their reply, they make a matter of doubt of itthey even now do not know that you have seen any such letter. Yet, these Judges tell you that "your Honor has sufficient evidence 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 letterthey, no doubt, expected that you would politely dispatch your servants from street to lanefrom 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 passage: "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;" but sir, there is no such passage in the Freeman's letter which I have seen. It is true, there is one something similar, 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 titleor, they meant to quote fraudulently, to shew off Freeman as a nonsensical and ungrammatical writeror they unwittingly blundered. If the first, they were inexcusably 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 Colony!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 a 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 his 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 Council. And in our Council books, names of AmericansCarolinians, 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 contempt 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 governmentto 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 its smooth words, isthat 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! Indeed, sir, it is but a mere group of wordsallow 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 Constitution the measure of his Government:" The despotic monarchs Vespasian, Titus, and Trajan, I say, ever made the rules of their Constitution, the measure of their Government: therefore it is an insult to the King, "to liken" him to a despotic 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 Sovereigns 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 Sovereign from the foul aspersion." Of this task, these Judges have very prudently exonerated themselvestheir hearts, your Honor knows, are Irish. I only mention this to shew how prone those 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 master's service." "Would Mr. Justice Drayton think it necessary before he 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 conductcharged 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 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 libelyou 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, our 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 slavethey being Judges during pleasure, profess that the King is their "Master." A title! of the most alarming 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 adulationreflects the utmost infamy upon them. So he, who poverty with horror views, Who sells 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 can legally determine, 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 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 fustian, quoth my father, Nothing can be better quoth my mother. Except dimity,replied my father, 'Tis best of all,replied my mother." 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 to observe to your Honor that, an "opinion hazarded," is "somewhat 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 reign of Charles the First? There is not the most distant similitude between the two periods." To this I reply, may it please your Honor, there is 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 Freeman'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 not any Representation of their own electionor, in the same terms with the people of England, because done without the consent of their Representatives of their own election in Parliament. Is not the similitude between the two periods, close and striking, notwithstanding the learned declaration by the Judges"there is not the most distant similitude!" Henceforth, can there be any confidence in their knowledge, or integrity! But let us proceed in investigating 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 is, "a time threatening, not insurrection from discontents, buta civil war from despair." To this the Judges say, "the present unhappy discontents," in America, cannot "be, with any degree of truth, compared 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 presentbut 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 fortifications 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 cannons 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 numbers 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 hostilities from the peoplethe King's subjects! The General, therefore, fortifies advantageous postswe know he collected troops from all the colonieshe 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 Governor dares not allow the new modelled legislature to meet. The people declare they apprehend hostilities from the King's General; they therefore in great numbers go armed, in and out of the town of Boston, and through the country in an hostile mannerthey seize cannon where they can find themwe know they daily train themselves to armswe know they lay hold of the public taxes. We know, sir, the General has declared that the people have assumed the powers of Government independently of and repugnant to his Majesty's Government. And, to shew 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!" 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 distractionspeedily 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 1628and they complete their characters, by declaring "there is not the most distant similitude between the two periods!" But, "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 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 by 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 contend 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 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, difficillimum est invenire authorem infamatoriae scripturae; for 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 this 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 evidence 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 prove 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 Parliament"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 publication; considering their self-declared zeal for the King; I say, considering 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 Sovereign 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 Remonstrance 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 themselvesthey could complain to your Honor of imagined injuriesthey could talk of instituting "a suit against" me "for damages;" but, may it please your Honor, in the midst of their personal cares, they lost their attention to the King's businessthey forgot, or they designedly neglected to punish him whom they declare has libeled the Kingthey 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 praeterea 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 Honoreither 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 representations 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 departing 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 departs 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 declaration, stating the complaint; and the replication must support the Remonstrance, without departing out of it; but the judges, who in this case are the Plaintiffs, having in their suit departed against the party, 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 prosecution 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 submitted 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 terms, 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 pleading 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 pleadings 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 JudgesI will not grasp at every opportunity, to cover them with ridicule. I, therefore, proceed to the second point of law, which I purposed to state to your Honor. The Remonstrance describes Freeman's letter to be a libelit declares I am "the author of it," and, therefore, it submits to your Honor, whether I am "a proper person to serve" "in the office of a Judge." In my answer, I stated, that your Honor had not legal power "to hear, Judge and finally determine the merits of the Remonstrance." 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 Ministers, and his Parliament, we humbly submit to your Honor's wisdom and judgment." But sir! although, to use the language of the Remonstrance, the King's Judges are willing "to increase his power, at the expense of his subject's rights;" and thus, as an offering of sweet savor, to the prerogative to sacrifice the trial by Jury, "the best preservative 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 wisdom," 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 pointthe suspension 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 him unless 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 lawor deprived of the benefit of the law." And shall I enjoy the benefit of this law, if upon an accusation 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 am guilty of the charges against me, which appear in the Remonstrance, would your Honor in doing so, pass upon me by due process of law? I most humbly apprehend, no; and I trust your Honor has too much learning, too much virtue, too great veneration for the sovereign laws of your country, to be induced to violate the great charter of our liberties. 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 securing 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, independently 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 himself, to maintain, to the utmost of his power, this valuable constitution 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 plausible pretences, may, in time, imperceptibly undermine this best preservative 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 intervention 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 jurythe Palladium of American liberty. (From Documentary History of the American Revolution, by Gibbes, Volume 1, pp. 55-70) Doc ID: Gibbes, v. 1, p. 55 Date: None [12/1/1774?] |
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