Dunlap's Pennsylvania packet , The general advertiser — Philadelphia, Pa., 1774-02-14 00:00:00, page 2

LETT E R IT.
For the PENNSYLVANIA PACKET.
" For a Freeman to be tenant at will cf bis
“ Liberty! / will not agree to it.—lt is a
“ tenure not to be found in all Littleton."
Coke.
To the Judge of the High Court of Admi
ralty at Philadelphia.
SIR,
TH ERE is nooccafion to make any apology
for considering you as the writer of a piece,
published in the Peonfylvania Packet last week,
under the signature of Civis, in which an attempt
was made to vindicate your commission. The
stile and matter as effectually betray the author to
the public, as if his name had been fubferibed to
it.—lt is but justice however to fay, that the de
cency and moderation, with which it is written,
are worthy both 6f praise and imitation. Wefel
dom fee disputes, especially where a man's interest
is so intimately concerned, conducted in a manner
so little liable to exception. No person can possi
bly refped you more for such behaviour than I do.
The controversy, Sir, seems to turn wholly on
the following question; namely, whether your
commission docs not give you power to try many
causes, both civil and criminal, which are, and
ought to bt, cognizable only in Courts ofcommon
Law. In order to prove the affirmative of the
question, I thought it the best way, to afeertain the
line of jurisdiction, between the courts of Admiral
ty in England, and the General courts established
by the municipal laws of the country. This line,
as drawn in England, I endeavoured to compare
with that delineated in your commission. From
the comparison I ventured to infer, that the lines
were by nomeans parallel.—This, however, you
have thought proper to contest, and boldly insist,
that there is no difference between the Admiralty
jurifdidion, as exercised at this day in England,
and,that authorifed by your commission. The au
thorities, however, which I cited out of the fourth
institute, you are so prudent as not to contradict,
or even attempt to explain away.—l hey Effici
ently prove, that the courtof Admiralty in Eng
land, hath no jurisdiction in any action with re
gard to freight, charter parties,policies of insurance,
bottomry bonds, &c.—You only oppose to them
" a few passages tranferibed" out of Beawes's
Mercantile Dictionary. With regard to the firft
of them, viz. “ that the Admiralty hath jurifdiai
" on in cases of freight, niariAers wages, breach
•' of charter parties, though made within the
" realm, if the penalty be not demanded, and like
“ wife, in case of building, mending, faring, and
“ victualling Ihips, &c. so as the suit be against
" the flip, and not only against the parties." It
is only necessary to observe, that the book there
cited, I mean 2. Croke, 216, has no authority to
support any such thing. There is not indeed, as far
as I could find, the Itaft foundation in all Croke's
Reports, for the assertion. Where Beawes met
with it, I am at a loss to tell, unless it was in
Godolphin's Jurisdiction of the Admiralty, or in
Ridley's view of the civil law: bocks, which are
high enough in their claims, for the power of
Courts of Admiralty; and which have therefore
been long since exploded as authorities on that
head. But wherever it was taken from, it can
only be true, as far as it regards mariner's wages.*
The diftinCtion that the Admiralty hath jurisdicti
on, in case of a charter-party, so as the penalty be
not demanded, is found only among the advocates
for the extention of the civil law. Sir Edward
Coke, when he fays, that the Admiralty cannot
meddle with causes on charter parties, is perfectly
silent as to it: So indeed are all the other books
of the common law; and these, as a lawyer, you
cannot but fcnow, are esteemed much better au
thorities in Wedminfter-Hall, than Ridley, Go
dolphinor Beawes.
Your next authority is likewise “ tranferibed''
from the fame author, and is by him taken from
Wood's institute of the civil law. With regard to
the substance of it, I shall only fay, that it is ex
pressly contradicted by the books of the common
jaw in every article, except that of suing in the
Admiralty for fearnens wages, andon hypotheca
tions. Itwould be endless to multiply authorities
on this head. —It has been determined more than
once, that a Court of Admiralty cannot hold plea
of any contract under seal, except in the inflance
of an hypothecation. Hence it is, that if sailors
make any special agreement under seal, with re
gard to the payment of their wages, they cannot
afterwards recover them in a court of Admiralty.ft
This too, will ferveto (hew the futility of the dif
tinftion you aim at, with refpeCt to charter-parties,
which are always under seal. It must be owned,
indeed, there is a confufion, if not a contradiction,
in fume of the law books, as to the objeCts of the
jurisdiction of a Court of Admiralty in England.
I have net the leisure at present, nor indeed,
Would it suit the limits of a News-paper disquisition,
to attempt to reconcile them. Upon the whole,
however, I cannot help thinking, that the general
principle, viz. “ that the Admiralty hath, no ju
“ rifdi&ion where the contract is made on land,
" though it is to be executed on the sea; or where
“ it is made at sea, 'and to be performed at land,"
will appear to every person in America (yourfelf
excepted) to be the established rule of decifion.J
No doubt there may be an exception to it, as in
the common case of mariners suing for wages;
which is said to be an indulgence of the courts of
common law, from companion to sailors: And an
indulgence it mod certainly is, for whenever they
* 2 Pere William, 367. Sullivan's Commentary on
Magna Cbarta, 395, who fays, " the next court that
<< the law of the land allows to proceed to sentence,
'' without a jury, is the court of Admiralty•,and that
" for absolute necessity : bor as its jurifJif'i.n is not
" allowed, as to any thing that happens within the
" body of a county, except in one particular inftonce,
“ contracts for sailors wages, but extends ens to
c: things done on the sea, or at mos to contra's made
'' in ioreign countries, (though this last is denied by the
" lawyers of our days, to belong to them,) there being
" n~ place from whence a jury can come.'' See also
3, X. Com. 107, to the fame purpose.
, Salh. 31. 2. Stra. 968. 1078.
+ ; Salk. 24. so L. Com. 107. Hob. 11. iz.
are sued, it muff not be in a Court of Admiralty;
but like other persons, they mull be sued at com
mon law for the violation oftheir contracts. Though
you have so obligingly offered your alliftance to
our Ihip-wrights, and promised to get their " dues
“ for them in the compass of a few days,'' yet, I
trust, even foppofing you 'ad a right to decide
such causes, they have too nigh a lenfe of the in
finite superiority of the trial by jury, ever to
commence an action in a Court of Admiralty. I
cannot dismiss this part of the argument without
citing an authority from one of the latest books of
report.§ A pilot sued in the Admiralty for pilot
ing a vessel in the river Thames, from Sea-Reach
to Deptford. After hearing council, a prohibition
was ordered by the whole Court of Common Pleas:
and they egprefly fay, “ there is no inftar.ee to be
" found where the contrast was at land, and to
" do the work on board, within the body offome
“ county, that the common law courts have ever
“ permitted the Admiralty to have jurifdiaion."
This case alone is a fuffieient answer to your as
sertion, that a Court of Admiralty hath cogni
zance in actions of debt for building or mending of
flips. The reporter adds, note,by flat. 15. Rich.
2. ch. 3. of all contrasts and things done, within
the bodies of contracts, as well by land as by water,
the Admiral's court hath no jurisdiction.
The next part of the defence of your commission
is perfectly curious and new. You chargenie with
having confounded the idea of crime and felony,
and very gravely assure us, that every crime does
not include a felony. And pray, what then? —
Have I said that every crime amounts to a felony?
—Far from it, Sir, 1 have only said, that under
the description of " offences, iufpeCted offences,
and crimes,'' your commission gives you power to
try all those that are recited in the flat, of Hen.
eighth, and that, therefore, it is a virtual repeal
of that law. It is evident to the common sense
of mankind, that the indefinite expressions of" of
“ fences, fufpeCted offences, and crimes," mud
include treason, robbery, murder, piracy, &c.
unless you can suppose they are are not offences
or crimes. My conclusion, therefore, that a sus
pending power is assumed bythe Crown, stands in
full force against you, I thank you for the candid
acknowledgment, thlt the 28 of Hen. 8. has al
tered the mode of trial for those capital offences,
and has directed it to be by jury.— I his you fay,
is agreed: And “ also, thatno finglejudge of Ad
“ miralty, since that time, either in England or
" the colonies, ought to be veiled with such pow
“ er." I hope, Sir, you will not think me dis
posed to remark on trifles, when I observe, that
this is very different from faying, that no judge is
actually vested with such power.—Many things
are often done by ministers and politicians, which
most certainly ought not to be done. Among
them, I think, should be ranked the flagrant vio
lation of law, in giving you, or any other man in
America, an authority which fupercedes an ad
of parliament. Read your commission over again:
And if you are not loft to yourfelf, and to your
country, you must be alarmed at its contents. —
You have authority given you (I repeat it with
astonishment, and you ought to read it with hor
ror) to try " all offences, fufpeded offences, and
" crimes."—Treafon, murder, robbery, &c. are
offences and crimes—You have, therefore, power
given you to try them.—ls not this reasoning plain
and unanswerable ?—And does not your commis
sion therefore give you jurisdiction to try causes
and persons, which the statute law of Englandhath
said, shall be tried, not according to the principles
and practice of your court, but according to the
course of the common law? —But I will not press
you any further on this point.
Your next affertion —that there can be no ques
tion as to the power of the supreme court of this
province to grant a prohibition to flay a cause in
the Admiralty—appears to be extremely ground
less. TheaCt of the Affemblv only fays “ that
the supreme court shall exercise the jurifdiftions
and powers thereby granted concerning all and
singular the premises, according to law, as fully
and amply, to all intents and purposes whatsoever,
as thejuftices of the courts of King's Bench, com
mon pleas, and exchequer at Weftniinfter, or any
es them, may or can do." So that the supreme
court, by this clause, can only exercise the powers
granted therein, as fully as the fame powers may
be exercised in any of the courts of Westminster
Hall. If you will take the trouble of reading the
preceding clauses of the a&, I am fatisfied, you
will not find a word about a prohibition. There
is indeed a loose expression in the former part of
it, “ that the supreme court may issue writs of
Habeas Corpus, Certiorari, and writs of error,
and all remedial anAnother writs, which, at firft
fight, seems to give them a power to issue any writ
whatever. But as a lawyer, Sir, you cannot but
know, that the writs of proliibition, and manda
mus are high prerogative writs, issuing only out
of the courts at Westminster Hall. This, all the
law books which mention them, expressly declare.
Can it be supposed then, that the Kingin Council
would fuffer any court in this province, merely
from the conftruftion of an aft of Assembly, to ex
ercise such a transcendent power? —The reverse
is indeed highly probable. The Assembly cer
, tainly never dreamed of giving such power to the
supreme court, any more than they ever dreamed
that ajudge would be established at Philadelphia
with the enormous powers of your commission :
Otherwise they would doubtless have provided
against the danger.—l will submit to your consi
deration as a lawyer, one more observation on this
head. It isan established rule in the conftrii&ion
of an ad of Parliament, or an all of Assembly,
that a description which fpecifies persons or things
of an inferior rank, ought not to be extended by
subsequent general words, to them that are faperior,
provided there are any of inferior rank to fatisfy
the words.l Now, Sir, let us apply this rule to
the case in hand. Do you not know that the writs,
which the a& of Assembly mentions, are inferior
to the high prerogative writs of prohibition, and
mandamus, and that the general words ofall other
§ 2 iTilfon 264.
U 2 Inf. 165, 166, 475, 137, 627. 3 Inf. 73.
remedial writs," cannot be conftiued to include
them, especially as there are a great many other
writs of an inferior nature to fatirfy those general
words ? On this authority alone, I ihay fafely rest
my opinion. The danger therefore, for want of
a power in this province to ftup the proceedings of
a court of Admiralty, still remains.
There is now only one other part of your de
fence to be answered. The public are, no doubt
much obliged by the information you have given
them, with regard to the mode of receiving your
salary. Permanent however as you allure us the
fund of old naval stores is, on which the payment
of your salary ultimately depends, (if you should
not be able to levy by way of penalties and forfei
tures enough to pay it) I have been well informed,
that it has already failed more than once.—lt is
moftclear, that your interest requires yon should
increase, as much as you can, that flock out of
which your salary is " in the firft place," to be paid,
in order more certain) to secure the payment of it.
If both sources fail,,^ must be the loser—there is
no other way provided to pay you. The penal
ties cannot ftri&ly be said to be the property of the
crown. They are expressly appropriated, or mort
gaged, to the judges as a security for their salaries
—and this, no doubt with a design to encourage
them todo their duty. The influence on the minds
of some judges arising from this interest, may not
perhaps be very great. Butthere may possibly be
others, who are not so remarkable for uncorrupted
virtue, and attachment to their country. For the
future therefore, cease to contend that you are
not concerned in condemnations made by yourfelf.
You are plainly intefeftedthat the forfeitures and
penalties should amount so high, that your salary
may be in no danger of diminution.
Your insinuation that I had looked only among
news-papers for a copy of a commission from the
high court of Admiralty, conveys a sneer, altoge
ther unworthy of your character. You must there
fore give me leave to look down upon it.
Having thus finifhed my observations on the de
fence of your commission, I shall add a few words
in confirmation of the objections made in a former
letter. You have, Sir, original jurisdiction in
causes arising within the provinces of New-York,
New-Jersey, Pennsylvania, the lower counties on
Delaware, Maryland, and Virginia. Confequent
]y you may call before you any person from the
fartheft part of either of those colonies, together
with all the witnesses in the cause; and for want of
obedience, may fine, imprison, and strip them of
their estates. Under the appearance of exercising
the power veftedin you by your commission, you
may harrafs the whole country at your pleasure.
Nor can it be pretended that a prohibition will be
from one of the other colonies, to stop your pro
ceedings in this. As a judge, you are, by no
means, on a footing with the sages of the law in
England, to whom you have thought proper to
compare yourfelf. They do not hold their com
missions, during pleasure, as you do, but during
life, and have besides, fixed salaries paid by the
crown. They are not judges of both law and fa&,
as you are. The laws which it is their duty to
execute, are calculated to preserve liberty, and
property. The laws, which you are appointed to
execute, are calculated to introduce tyranny, and
arbitrary government.
The people in the colonies, Sir, are not yet fully
apprized ofthe extent and danger of your commis
sion. They will, ere long, I hope, be sensible of
it.—lt is impoflible we can ever be a free people,
while such a commission, as yours, is held over our
heads, which alone, without stamp-act, or reve
nue-ad, is fufficient to prostrate all the liberties of
America at your feet. Like the deteffed court of
Star Chamber, you are veiled with almost unli
mited discretionary power. If you do not tram
ple upon our dearest rights and priviledges, it is
not because you want the power, but the will to
do it.—Depend upon it, Sir, the Americans will
not always submit to hold their liberties, by such
a difhonourable tenure. They have hitherto been
attended with triumph and success, in every strug
gle against usurpation and tyranny. Life itfelf,
is not worth preferring, if we once surrender that
certain rule ofliving, by which we are secured in
the enjoyment of our properties, our liberties, and
our persons. But these must inevitably be in
continual danger, while your commission is in ex
istence; for, in the words of Lord Camden,
" the Discretion of a fudge, is the law of
Tyrants."
RUSSE L.
f0,4#%0- $ $ * 4-*^*4'#^^^
BOSTO N, 7^.31.
From the Maffachujetts-Spy of Thursday last.
YOU may be affined that the difficulty the gen
tlemen in Boston found in refeuing Malcom
from the modern mode of punishment prepared for
him last evening, in consequence of his Tabbing a
seaman, arose from his falling into the hands of a
great number of sailors, from the eaftwatd and other
parts, whom he had so often exasperated that no
thing could foften them. When they were told
the law would have its course with him, they
asked what course had the law with Preston or
his soldiers, with Capt. Wilson or Richardson ?
and for their parts they had seen so much parti
ality to the soldiers and Custom-House officers
by the present Judges, that while things remain
ed as they were, they would, on all such occasi
ons, take fatisfa&ion their own way, and let them
take it off. A. Z.
We hear from Marblehead, that last Tuesday
night the inoculating hospital for the small-pox,
lately erected on Cat-lfland, near that place, was
intirely consumed by fire, together with upwards
of 70 beds, bedding, and all the other furniture:
'Tis supposed to have been purposely set on
fire by some ofthe inhabitants; owingto theirup^
eafmefs and dread of having that distemper spread
among them, by the patients and others not con
forming to the rules and regulations by which the
hospital was at firft permitted to be erected—-The
loss to the proprietors (said to be only four in num
ber) is computed at £.1500 sterling.
Feb. 3. On Tuefdaylaft the Honorable James
Pitts, Artemas Ward, Benjamin Greenleaf, Wal
ter Spooner, and Samuel Philips, Inquires, a
Committee from his Majesty's Council, presented
the following Address to his Excellency the Go
vernor.
To his Excellency
THOMAS HUTCHINSON, Esq;
Governor and Commander in Chief in and ever the
Province ofthe MafTachufetts-Bay.
The Address of his Majesty's COUNCIL of
the said Province.
May it please your Excellency,
TH E Board have attentively considered your
Excellency's Speech to the two Houses at
the opening of the present session.
The affair of the Indians of Martha's Vineyard
has been repeatedly the object of the attention of
the General Court, and at the last session a new
Committee was appointed to go thither to obtain
a true Rate ofthe fads; and it is expeded at this
session they will make their report. As soon as
laid before us we shall take it into consideration,
and do our part to “ prevent all grounds for com
plaint of the denial or delay of justice.
With refpe& tothe late settlement of the West
ern Line of this province, where it is bounded by
the Eastern Line ofNew-York, it gives us great
pleasure, as the dispute has been the source of id
much mifehief to the two colonies, that your Ex
cellency has reason to exped his Majesty's con
firmation of that settlement, as soon as the neces
sary formalities of office will admit. And witli
refpe& to the fubjed of the Address of the two
Houses in January last, we are glad your Excel
lency has reason to hope for a fatisfaftory determi
nation and order concerning it.
The order of his Majesty for regulating the fu
ture cendua ofthe Governor in the Supreme Court
of Probate, and in the decision of controversies
concerning marriage and divorce, is founded in
the highest reason: for (as it is well observed by
one of his Majesty's Council at law, viz. Richard
fackfon. Est; to whom the matter was referred
for his opinion in point of law) 'fit is so unsuita
ble to the nature of a court of juft.ee to consist of
two branches, each pofleffing a negative on the
other, that though something like it may be found,
yet he conceives no conftru&ion ought to be found
ed on the possibility of the existence of such a
court, because the instances of such (if any) will
be found to-stand on principles not applicable to
the present case. And he is of opinion the Go
vernor of the province cf the Massachusetts-Bay
may lawfully acquiesce in the determination ofthe
majority cf the whole number of Councellors pre
sent, although he should differ in opinion from that
majority ; because he conceives it to be past doubt,
that by the clause in the charter (which provides
that in all ads of government by the General As
sembly or in council, the Governor shall havethe
negative voice) nothing more is intended by the
words, acts of government in council, than exe
cutive acts of state in exclusion of judicial ads,
which though they are the exercise of a power de
rived under government, are never, he believes,
comprehended under the description of ads of go
vernment." To which may be added, that it is
plainly a solecism that a court of justice should be
so constituted, as in many cases, properly cogni
zable by it, to be incapable, from the nature of
its constitution, to give a judgment. We agree
with your Excellency, that in this conftru£ lion of
the charter, which you fay is different from what
has been made by all Governors ever since its firft
publication, his Majesty has shewn a tender regard
for the interest and convenience of his fubje^s.
Your Excellency is pleased to inform us, that
you are “ required to fignify to the two Houses
his Majesty's disapprobation of the appointment of
Committees of Correspondence, in various instan
ces, which fit and aft during the rccefs of the ge
neral court by prorogation."—So far as this mat
ter relates to the Board, it can relate to them only
in the instance of correspondence with Mr. Agent
Bollan: With whom, since they chose him Agent,
they have divers times appointed a Committee to
correspond during the recess of the court.
As this is a matter of great importance your
Excellency will permit us to difenfs it with free
dom.—When Governor Bernard was in the Chair
he early discovered a disposition to infringe on the
rights of the Board; and this disposition incieafed,
till at length, regardless of the dignity of his fla
tion, he descended to the most ungentlemanly
treatment of them, when they either refufed an
acquiefeence with his unwarrantable measures, or
endeavoured to support their rights against his
usurpation. They had long apprehended, that
besides those personal attacks in council, he had by
his letters been misrepresenting them to his Ma
jesty's Ministers; but they had not full evidence
of it, till they received authenticated copies of
some ofhis letters to Lord Hillfborough, in which
they found themselves personally abused, and all
their rights and priviledges in their public capacity,
and their very existence in that capacity, struck at.
Those letters having been laid before Parliament
unjustly procured a parliamentary censure of the
council, and threats of further proceedings against
them. Now though it hadbeen usual in a regular
state of things for an agent to be appointed with
the concurrence of the three branches of the ge
neral court, yet when that state became inverted,
when the Governor was endeavouring to destroy
the rights of the council, when our constitutional
rights in general Were in danger, and no confi
dence could be placed in a Governor, the principle
of felf-prefervation and the right of defence, na
turally inherent in man, both individually and so
cially cohfidered, required and juftified the two
Houses jointly or fevetally at their option, to choose
an agent or agents for the defence of those rights
independent of the Governor. But it might fruf
trate the end of such choice, if they had not th*
power of appointing a Committee to correspond
with their agent when chosen: For although the
Governor should permit them to fit till they
had informed and inftrußed their agent in every
thing at that time thought needful, yet after the
fulled information and infLuGions at frftgi vert,