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Colonial and State Records of North Carolina
Letter from Josiah Martin to George Sackville Germain, Viscount Sackville
Martin, Josiah, 1737-1786
May 17, 1777
Volume 11, Pages 721-727

[B. P. R. O. (No 8.) Am: & W. Ind: Vol: 222.]

Long Island near New York
May 17th 1777.

My Lord,

I have the honor to inform your Lordship that on a Review of

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my Carolina Papers which my returning health has lately enabled me to make I have met with a kind of conciliatory overture that I received in the month of January 1776. and as I have heard it has been misapprehended by some persons here I think it proper to communicate it to your Lordship even at this late period to obviate the possibility of misrepresentation although I considered it of too trifling a nature to deserve notice in the proper order of time.

The proposition my Lord to which I refer is contained in a Letter from a Mr Maurice Moore of which and of my answer thereto I have the honor to enclose Copies to your Lordship herewith. I am to inform your Lordship that Mr Moore's letter was brought to me by a person who acquainted me it was wished my answer might be calculated for the inspection of the Committee of Wilmington which it was supposed it must necessarily undergo from the same messenger. I understood it was the great object of Mr Moore by this letter to open a way to a personal interview with me in which he intended to communicate a plan he had formed for the accommodation of the differences subsisting between Great Britain and her American colonies. Knowing the man to be a most whimsical visionary in politics and that he was strongly tinctured with republicanism, imbibed it may be supposed in his education in New England I conceived no great hopes, My Lord, I confess that any admissible plan of reconciliation could proceed from him. I had my doubts too of his being authorized at all or that he would be trusted by the People of the colony to negotiate for them for altho' his parts and extensive connections in the Country gave him pretentions to considerable influence in the Assembly of that Province it was remarkable that his caprice and fickleness had always disappointed his ambition to take the lead in that branch of the Legislature insomuch that it is averred he has never carried a single point there of any importance in a course of upwards of twenty years service which is the more surprising as he has been evermore a zealous votary of the bubble popularity. His part in the present rebellion was long as undecided as his political conduct has been on all other occasions for after entering two of his sons in the rebel army he has affected to speak at times with disapprobation of violent measures as I have heard.

I have thought it proper to give your Lordship these lines of Mr Moore's character and before I take leave of the subject it is necessary

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I inform your Lordship that owing to the neglect of my messenger who trusted my answer to Mr Moore to another hand it did not reach him until the Loyalists were in motion so that I heard no more of him or his political speculations which I have no doubt will be found if ever they come to light as wild as any thing the frenzy of the present times has produced but although this was my opinion from the beginning I thought it adviseable to shew every disposition to receive favorably whatever advances were made under the sanction of the people that looked like desire to return to their duty and I flatter myself your Lordship will think that I acted correspondingly and that I gave as much encouragement to Mr Moore's proposition as it deserved or was consistant with my duty.

As I consider it may be hereafter of publick utility that your Lordship should know how little strength Government has derived from Patent Offices executed by Deputies in the Colonies I have the honor to transmit to your Lordship herewith the copy of a letter I received from Mr Samuel Johnston, Deputy Naval Officer of North Carolina, in answer to a letter of mine suspending him from his Office of which your Lordship will also receive a copy. I mean to give it as an instance to your Lordship that the Deputies of such Officers acknowledge no dependance on, or relation to, Government whence it happened often I have no doubt, as in the case of Mr Johnston always, that the weight derived from these offices was employed to embarrass instead of aiding Government which thus forged arms against itself. Mr Johnston, My Lord, had a good private character in deference to which and to the opinion of some of his friends that he would take a part of moderation I forebore to suspend him until he appeared as Moderator of a Provincial Congress and accepted from that illegal Assembly the Office of Treasurer of the Colony notwithstanding I had found him uniformly in opposition to every measure of Government during my administration. This Gentlemen, My Lord, was educated in New England where as in the other case I have mentioned it may be supposed he received that Bent to Democracy which he has manifested upon all occasions and more especially and most criminally in contending as a Lawyer as confidently as ignorantly against the Legality of the exercise of the acknowledged Prerogative of the Crown to constitute Courts of Judicature at a

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time the Assembly perversely rejected repeated opportunities to establish Courts by Laws of their own through obstinate adherence to an inadmissible provision that applied only to particular circumstances thus becoming a principal instrument of dethroning Justice in North Carolina full two years before the total subversion of Government by Rebellion which in that Province may almost be said to have been forerun by anarchy. It is certain however that the Assembly wanted not the countenance of a Lawyer's opinion to renounce the choicest blessings that should flow from Prerogative. The over indulgent concessions which the generosity of Government was wont to make to these froward people, My Lord, almost in every instance that they contended they as ungratefully as presumptiously ascribed to other causes and it was become a maxim with them that they had only to oppose obstinately any regulation of Government to have it revoked. In short, My Lord, the compliance of Government had reduced it to a very Phantom in the Colonies while the continual usurpations of the Assemblies had drawn all real power and energy into their own hands 'til at length in the fullness of vanity they wantonly tired of that relation to Britain to which they owed all their prosperity in all the Colonies except the Floridas I believe My Lord. But in No Carolina I am sure the Assembly had arrogated such absolute authority over the Public money with regard to the custody and disposal of it that the King's Governor in the greatest emergency could not draw a shilling out of the Treasury a circumstance which I presume to mention to your Lordship as one that in my humble opinion may deserve attention at the restoration of the King's Government in the Colonies when I conceive it will be on all accounts advisable to reserve to His Majesty's Governors the right of appointing the Provincial Treasurers.

Having been led, My Lord, to take notice that the power of the Crown to constitute Courts of Justice in the Colonies had been called in question I think it proper to observe to your Lordship that experience hath evinced the utility, if not the necessity, of erecting Courts of Judicature in these Provinces by the Prerogative. Wherever those first Institutions of Civil Polity have been left to the Assemblies to form they are either very imperfect or depending on temporary laws as in North Carolina the administration of Justice has been liable to total suspension from some caprice of the

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Assembly in relation to them In this Province of New York where the Courts have been establisned from the beginning by the power of the Crown they have never known an interruption of the course of Justice. They are modelled and regulated as nearly as possible upon the plan of the King's Courts at Westminster. The Assembly has been wisely contented to enjoy the benefits of these Institutions and hath never offered to interfere with them farther than to regulate their proceedings in certain cases by Laws on account of some local necessity.

Although the very high and important department your Lordship now fills will necessarily have turned your attention more particularly towards Colony Affairs it cannot be doubted that your Lordship's general knowledge of things must have made you acquainted with the feebleness of Government in these Provinces and have shewn to your Lordship how much it has favoured if it may not be said to have induced the present Crisis and as at the restoration of order it may become matter of your Lordship's contemplation how to strengthen it sufficiently I most humbly beg leave to suggest one expedient that may be employed with great good effect in North Carolina, it is my Lord to abolish the Office of Clerk of the Pleas that is an absolute sine-cure and to vest in his Majesty's Governor the power of appointing Clerks of all the Courts as well inferior as superior. Heretofore it belonged to the Officer above named by the tenor of His Majesty's appointment to constitute both the one and the other but the Court Laws have always vested in the Chief Justice the appointment of the superior Court Clerks which the Lords of Trade objected to and by their Lordship's letter bearing date Dec:ber 12th 1770 instructed Mr Tryon then Governor of North Carolina to take care when the subsisting Court Laws should expire to have that power reserved to His Majesty's Governor. With infinitely greater reason and advantage, My Lord, the right of appointing the County or (Inferior) Court Clerks should reside in the same hands. These Officers of which there is one in each County soon acquire an ascendancy over the Magistracy of their respective Counties and by the manifold duties which the laws have accumulated upon them obtain prevailing influence over the People, hence it happened, My Lord, that as many of them as pleased got into the Assembly where they were almost constantly found in opposition to Government recognizing

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no sort of obligation for their employments. The office of Clerk of the Pleas has been always odious and his power has never been properly acknowledged in No Carolina The County Court Clerks who have accepted his Deputations have done it rather through courtesy than any sence of necessity for it has been contended that the power of appointing Clerks was legally vested in the Courts and the Clerk of the Pleas has found it his interest to compound for the admission of his authority upon any terms, glad to stipulate with his Deputies for a small portion of their annual profits. If his authority had been thoroughly established it would have been an advantage to him as it would have enabled him to farm his Offices to the best bidders but that would have been detrimental to Government which would have borne all the reproach of its Officer's venality. This subordinate Officer of Government called Clerk of the Pleas by his Commission has power to appoint thirty three Clerks in No Carolina whose employments are worth from Two to five, six and seven hundred pounds currency pr ann. while the King's Governor there has not a single office in his disposal of the value of the most contemptible clerkship and Government has not derived a grain of weight or influence from these desirable and important appointments because they have not flowed from the King's Governor, in whose hands where they could not be venal they would strengthen it exceedingly In this Province of New York their Offices have been always in the Governor's disposal I had formerly the honor to propose, as I have now done, the abolition of the Office of Clerk of the Pleas and the only objection made to it was that it would be a hardship to deprive that Officer of his appointment without imputation of misbehaviour of which I could not but feel the force in the case of Mr Strudwick the present Clerk of the Pleas who is a man of merits.

Since that time My Lord I found occasion to recommend Mr Strudwick to the Lords of the Treasury for the office of Receiver General of His Majesty's Revenues in North Carolina in the room of Mr Rutherford who with many good qualities is exceedingly unqualified for that office as His Majesty's Auditor General can inform your Lordship and if the Lords of the Treasury shall be pleased to accept my recommendation of Mr Strudwick the Office of Receiver General will be ample compensation to him for the abolition of that of Clerk of the Pleas.

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It has been already thought adviseable, My Lord, that the power of appointing Sheriffs should be vested in the Governor of North Carolina as it is in this Province but in order thereto it will be necessary the Law of that Colony of the year 1768 Intituled “An Act for appointing Sheriffs and directing their duty in Office” be disallowed so far as it relates to the appointment of that Officer as in effect it gives the power of appointing Sheriffs entirely into the hands of the Justices of the Peace who have most shamefully prostituted those important Offices.

Whenever circumstances shall draw your Lordships attention to the affairs of No Carolina your Lordship will find there are two Laws of that Province of the year 1774 the one Intitled “An Act for establishing Inferior Courts of Pleas and Quarter Sessions &c the other “An Act to establish Courts of Oyer and Terminer and General Gaol delivery &c to which I assented for the sake of preserving some show of an administration of Justice when the Assembly would neither make or admit any better provision for it, that are fit to be recommended for His Majesty's Royal disallowance since they will otherwise by their own Limitation endure to the end of a future session of the Assembly.

Notwithstanding all matters relating to the civil Government of these Colonies must be considered at present as mere subject of speculation I have thought it my duty humbly to suggest to your Lordship such circumstances with regard to North Carolina as I have thought may deserve your Lordship's notice when the time arrives for reforming the Colony Constitutions that is a most stupendous and important work which seems reserved for your Lordship to accomplish.

I am to beg your Lordship pardon for omitting to report in its proper place that I found opportunity before I left No Carolina to signify His Majesty's most gracious pardon to the Insurgents there except Hermon Husbands pursuant to the power granted to me by His Majesty for that purpose.

Captain Tunes who was to have been the Bearer of my Dispatch No 6. I find, My Lord, was detained here by Sir William Howe's appointment of him to an Office of much utility and consequence.

I have the honor to be with the highest respect
My Lord
Your Lordships
most obedient and
most humble servant

Recd 10th July.