Jno: Magill to Gov: Nelson
July 12, 1781
The inclosed Letter (not found) addressed to the Gentlemen nominated in the Commission in conjunction with myself, will in part inform You of the steps taken by me to carry it into Execution - At the Same time I wrote the County Lieut: of Hampshire, that I should attend, & inclosed him a Precept to the Sheriff to summons Jurys accordingly. Tho' I was well aware there cou'd not be fifteen Days clear between its Teste & Return, which according to the established Practice in England there ought to have been, nor cou'd I find any Rule relative thereto laid down in any of our Acts of Assembly - Pursuant to my Letter, I proceeded to Houses' Ordinary on Sundays' Evening and waited there untill next morning at 9 o-clock, when, on finding not one of the other Gentlm to appear & knowing it cou'd answer no Purpose what ever, to go up alone, I embraced to opportunity of a Residenter in Hampshire, who was accidently returning home, to acquaint Col: Vanmeter by Letter, that he need not expect me for these and other Reasons therein mentioned & accordingly returned to my Residence -
Your Excellency must excuse me, when I assure you, I was far from being Sorry that the Purpose of the Comm'n was defeated, more particularly when it was owing to no Default of mine, as Nothing but the Duty which I thought I owed my Country, and that high Respect which ought to be paid to You as the supreme execute Magistrate thereof, cou'd possibly have induced me to act therein, tho' on receiving it, I at once determined So to do, notwithstanding the Inconvenience of the Season, being the Middle of Harvest. The extream Disagreeableness of the office & being So totally out of the Line of my Practice, as of all the Four mentioned in the Commn, I am the only Lawyer, who at present attends Hampshire Court.
Your Excellency, I hope will pardon me, when I take the Liberty of saying, that in my opinion, the Judges of the General Court & they only ought to Act on matters so nice, so delicate, may, so arduous, difficult & disagreeable as a Commn of Oyer & Terminer. It is Strictly their Office & by Study & Practice they have made themselves Masters of it - Theirs is the Honour, Theirs the Emoluments, and why shou'd they not take whatever may be troublesome or disagreeable therein - No man of Sensibility, ever pronounced the Common and ordinary Sentence of Death, much more than the Solemn Judgment in Treason, even upon the most notorious offender, but where a due Sense of the Duty he owed his Country & of a proper Execution of the Office he filled, called aloud upon him so to do.
The Act of Parliament of the 8th R. 2, enacts, that no Man of the Law, shall from thence forth be Justice of Assize, or of the Common Deliverance of Goals, in his own County, & the 33d H. S. enacts that no Justice or other Man, learned in the Law, shou'd exercise the Office of Justice of Assize within any County where he was born or inhabited, upon pain to forfeit 100 pounds - And these Statutes have always been construed to extend to Justices of Oyer & Terminer - I am well aware that the Stat: of the 12th Geo: 2, has taken away the Penalty, but every Gentlem of the Law, who has been in England knows the general Practice to conform to the old Law. This needs no Comment - Your own good Sense will & must furnish better than any I can offer -
I have too long troubled your Excellency, but can't conclude without observing that tho' the Act of Ass'y impowers You to nominate three or more Gent'n learned in the Law &c, The present Comm'n is directed to four of us by name, without saying "or any three," for which reason, unless we all had attended I shou'd have been of the Opinion, we cou'd not have proceeded, as all delegated authority must be construed strictly. This with the Hint thrown out in the beginning of this Letter, relative to the Precept to the Sheriff may perhaps merit your consideration, as giving orders to make out a future Commn.
These Hints, if I had not thought them material, as also that my Duty required it, I shou'd not have taken
the Liberty of troubling Your Excellency with. If they are not, my Judgement, not Will has erred. For be
assured, I Am, with the highest sentiments of Respect,
most obt & Very Hble Servt - "
Claypool's Rebellion: Primary Documents