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SEP i9ign
^3 ^sHrni
tX-y^^- --*••
REPORT
or
THE RIGHT HONOURABLE
THE LORDS OF THE COMMITTEE
0?
HIS MAJESTY'S
MOST HONOURABLE PRIVY COUNCIL,
ON CERTAIN COMPLAINIS AGAINST
LIEUTENANT GOVERNOR FANNING,
A\D OTHER OFFICERS
OF l>li MAJESTY'S GOVERNMENT
IN THE ISLAND CI' ST. JOHN.
( 5 )
jit the Court at Saint James's^
the I ft of Auguft 1792,
PRESENT
THE KING'S MOST EXCELLENT
MAJESTY,
Vifc. Macartney,
Mr. Secretary Dundas,
Mr. Steele.
Earl of Chatham,
Lord Grenville,
Lord Hawkeibury,
"WHEREAS there was thi^ day read, at the
Board, a Report from a Committee of the Lords of
His Majcfty's Moft Honorable Privy Council, dated
the 14th of laft month, in the words following;
viz.
YOUil
( 6 )
" YOUR MAJESTY having been pleafed, by
*' your Older in Council, of the 29th of July, 1791,
*' to refer unto this Committee a letter from the Right
*' Honorable Henry Dundas, one of your Majefty'a
** Principal vSecretarics of State, to the Lord Preildent
•* of the Coun..il, tianfmitting a memorial of the
*' proprietors of land in the illand of St. John, in the
" gulph of St. Lawrence, and merchants trading
*' thereto and therein, complaining of Edmund
** Fanninc;, Efq. Lieutenant Governor, Peter Stewart,
*' Ell]. Chief Jullice, Jofcpli Aplin, Efq. Attorney
•' General, and \V iljiam Townfhend, Efq. CollcAor
*' of theCuftomsand Naval Officer, in the faid ifland
*' of St. John i to which memorial were iikewife
** fu!)joincd fpccific charges againft the faid fcveral
•'officeis; and liumhiy praying your Majcfty to
*' grant the Petitioners fucli fpeedy and cficftual
" relief as fliould feeni expv-dient for them : — The
** Lords of the Committee, in obedience to yonr
** Majcfly's faid order of reference, did, on the 9th
•* of St^ptember, 1791, take the faid memorial and
*' fpcciiic cliargcs into confidcration, and were at-
*' tend(.d by iho Complainants, who laid before the
*' Conuuittec fundry dcpoiltions and proofs, in
*' llipport of thcii faid charges ; and the Committee
*' thciciipon thought proper to order, that a copy of
*' the faid memorial and fpccific charges, as alfo of
3 the
( 7 )
" the faid dcpofitions and proofs, fliould be trajif-
*' mitted to the faid Edrnuiid Fanning, Erq. to be
" by him connnuiiicatcd to the faid J'ttcr Stewart,
*' Efq. and the other parties complained of; witii
*' direftions that they Ihould feverally return their
*' anfvver thereto, in writing, with fuch further
*♦ depofitions and proofs on both fides as they might
*♦ think fit to offer : and the anfwers to the faid
*' fpccific charges, and the depofitions and proofs
*' taken on both fides, having been accordingly tranf-
** mitted and laid before the Committee, they have
" met feveral times, and liave been attended by
*' Counfel on both fides ; and having maturely con-
*' fid'jrcd the charges againll your Majefty's faid
•' ofllcers, with their anfvvcis tJicrcto, and the
•* evidence on both fides, their Lordlhips do agree
*' humbly to report to your Majcfly, that, before they
** proceed to examine the matter of thefc charges,
" they think it proper to flate the manner in which'
** thcv arc brou''ht lieforc them : — The memorial
*' prefented to your Majelly carried the appearance
*' of a complaint in the names of a coiinderable
*• number of merchants and proprietor? belonging
*' to the ifland ; but before it came to be heard, out of
" eighteen that originally affemblcd to confiucr of
** this bufincfs, twelve of this meeting begged their
*' names might be vvithdiawn, as the complaint had
*' been
(
8
)
** been preferred without their confcnt ; fo that fix*
*' only vemahicd as prolccutors, the reft difovvuing
'* the whole proceeding."
** The f^cncral charge againft tlic Defendants is,
•* tli:it they, the Lieutenant Governor, the Chief
*' Jullice, the Attorney General, and the CoIle£tor
** of the Cufloms, had formed a dcflruftivc Com-
*' bination to govern the Uland at their plcafure ;
*' and, with this view, had jointly, as well as fc-
*' paratcly, opprefTed all thofc who oppuled them •
" folves to the arbitrary dcfi^ns of the ofTicers of this
*' govcrnmc'nt; and the nic:;iorial ftatcs thcfe pcrfons
*' ihiou^hout as afFociatcs and coiifederatc.;."
" Havin<5 laid this general charge, the m:morlal
*' niocecd:^ to Hvcifv the fcvcral crimes ihev have
*' commuicd, under diiiiat^l heads ; :dl of which
** nic lirou';!it as proofs of the great and general
** c!;:i".;C of the aforef.iid Combination."
"* That ;"!, J(fipli Ki.k;r),in, Brewer, in St. Giles's; R.-iiTiuel
y.fl.iicy, '1' a man, IJcdford Strcer, Covcnt (j::ri!vn ; Joha
Jlarii';, n W t'lt in tin; City, nn-.v a Binkrupt; rJl l.ite part,
rif-rs of Jfiin Cimbiid^'^c; Alexander rietclicr, Ciiicf of the
P.itterfon Faction, in the in-iiul ; Joliii Hill, formcily a B!ack-
iinith at Topdiam, and lately a tndcr to tlie ifl-.d, and :k
fuilous pirtiCin nf the Pattt-rloii Fa£\ii)iii and Jolin Cambridge,
formerly an oblcurc Chni--:nakt: in St. Martin's Lane, and
now a 'i:?Azx t'l tl.c !fl"vJ.
" This
( 9 )
" This charge, if proved, is a high mifdemeanour."
** The Committee therefore cxpefted to have feen
*' either exprefs proof of the alleged combination
** or fome circumftances from whence a ftrong pre-
*• fumption of fuch combination muft arife ; but
*' no evidence of this fort has been producd :—
•* On the contrary, it does not appear, from any
** thing in this whole accufation, that any two of
*' thcfc gentlemen ever exchanged a word with each
" other, except when they met in Council; nor is
*' there any proof of fuch a combination, from
** words or writing, fpokc or written, by any of
*' thefe Defendants; fo that the proof refts altogether
** upon the fcparate fa£ts that are alleged."
*' And as this is the real or pretended ground of
** the whole accufation, if the fa£ts, brought forward
** to prove it, have no fuch political connexion, the
*• charges Ihould have been feparate, and each delin-
** quent made refponfible only for his own a£ls ;
** whereas, by this joint charge, they are made to
*' unite in a common defence, and ;ae neceflarily
•* drawn into a joint vindication of each other's
*' conduft, in matters that have no relation to their
** own cafe."
B
The
I '0 ]
^^ The Committee ih:n^ upon the JlnBell
** review of all the Jpec I fie charge ^^ are of
•* opinion^ no^ only tbiit the cprregate of
** them is vo.d of any proof of Jueh a Com*
*• hiriation as is al/eretiy lutl that the fpecifc
•* changes, t 'hen feporatcly, arc fit '/v anpivercd^
*' ANI) THAT THE V/iiOLL: ACCU-
** SATION IS GROUNDLESS; and this
•* li'ii! appear by cxatninincr each change by
*' /V/t7/', IV hie h, together i^iih their own opi-
** «/(?«, the Committee beg leasee humbly to
*' lay before ymr Mfefly^''
F I 11 S 1' C H A R G E.
*' Tl.e Li'.i'.t'.'nant Governor is accufc-J for dif-
*• folvinj, the Alloailily upon his iiift arrival. — The
*• Committee are of opinion he tliJ right, bcciufc
*' that was the very AHcmhly which, in conjundlion
** with Li'-utcuant Governor rattcifon, had paifed
*' an n£l to contlrni the falcs made under the illegal
•' conlifcatioiis, in difobcdi-^nce to your Maj-jfty's
*' orders."
((
SECOND C II A R G E.
" T'iKit, when upon the tlcclion of Members
upon ihii firll diirolulion the bhcrilF had rcturncJ,
*' tluc
[ " 1
'• that the poll Ind bocii dillurhccl liy military Iii«
*' tcrfcrciicc, and tliat lie could not vcntuic to re-
((
turn them as duly defied, the I.ieutciiaiu Ciovcr-
** nor is accufcd for ifloing a new wiit tor a fttlh
•* ck-aion."
** At this time the whole yMFcinhly, conflfliiip; of
** eighteen members, were all chofen, under one
*• writ, by all the voters in the illand ; and the ob-
** jedlion made by the Sheriff went to the whole re-
*' turn, fo that there could be no judge of this return,
" thcclcaion of all being equally impeached."
** Upon this new cafe the Lieutenant Governor
*' ordered a cafe to be laid before th- Chief Juftice,
*' and the Attorney General, for their opinion. The
*' Chief JuHice thought the whole void ; and that
*' there ought to be a new eIe<5\ion. The -Attorney
** General differed. 'I'hc Commiitee are clearly of
" opinion, that the opinion of the Chief furticc was
*' corre(':tly light ; but thefc acculeis criminate the
" Lieutenant (jovernor for not following the opi-
*• nion ot the Attorney General, Which was wrong,
*' and bring this as a proof of au unlawful com-.
♦' binatiua."
B
THIRD
-f- Caiclrcchi,
[ 12 I
THIRD CHARGE.
** That he altered the mode of Eleftion without
«* authority."
*' Inftead of one ele£lion of the whole number,
♦* unde: one writ, the Lieutenant Governor dircded
** the eleftion to be made, under fix different writs,
*' and divided the rcprefcntation, by which four were
** to be chofen, for each of the three counties, and
*' two for each of the rnvalties of George Town,
*• Prince's Town, and Charlotte Town."
*' It is clear, that the mode, iirft adopted by Lieu-
*' tenant Governor Pattcrfon, was in no refped con-
'* formabic to your i\iajcfty*s inftrufiions; and it is
*' as clear, that the other mode, directed by Lieulc-
*' nant Governor Fanninj^, is perfe»flly agreeable to
*' thofe inftrui^inns, and was not taken up by liini-
*' fclf, but unanimoufly recommended by the Coun-
" cil, and has never been complained of fince."
" Another charpc broup,ht to prove the faid com-
*■ bination, is, that the Lieutenant Governor did
•' unlawfully difplacc the SherifF, Mr. Mac Millan ;
*• and appointed for that year, namely, the year 17S7,
" three
C 13 ]
•* three difFcrent perfons, Mr. John Stewart, Captam
*' Hayden, and Mr. Robertfoii."
*' When Lieutenant Governor Fanning arrived in
*• the ifland, to take the government upon him,
*' upon Mr.Pattcrfon's difmilTion, he was oppofed by
" the latter."
•* Mr. Mac Millan, the Sheriff, being a friend of
*' Lieutenant Governor Pattcrfon, would not attend
" at the Council Chamber, to hear the proclamationi
*' read, which contained a notice to '.li!' inhabitants
*' of his appointment ; but departed from thence la
*' defiance of your Majefty's inftruflions. For this,
** as well as other objetSlions, Lieutenant Governor
**.Fanning removed him from the office ; which he
*' conceived he might do, if there had been no fuch
** objeftion againft him ; for, by the law of the ifland,
" the Shrievalty, which is an annual office, is to be
*' appointed in this manner. The Senior Judge de-
" {'.vers a hft of three perlbns, on a particular day ;
** one of which three the Lieutenant Governor is
** to fix upon for the execution of the office. Mr.
*' Mac Millan's year was expired, and the Senior
*' Judge had not delivered his lifl: of three perfons.
*' Therefore, the appointment devolved upon the
*' Lieutenant Governor, as your Majefty's Repre-
*< fcnialive."
«' The
r M ]
*' The two fiiR accepted the oiTlce upon coiidl-
" tioii to rc'iga it, which they did ; and then the'
** third was appointed tor the remainder of the year;
*' and they all in their turn gave the proper fecuiity."
*' A\u], though it is alleg'^d by the complainants
*' that thcfe appointments were made for the purpofe
*' of ohtaininr- a return of members to fcrvc his own
*' purpofes, there is no other evidence of fuch a nio-
** tive but the mere allegation ; and it is mofi: pofi-
*' tivclv deniei!, not onlv by the Lieutenant Governor,
'* but bv C'aptan Hnyden, who was the Sheriff and
*' returning olliccr who made the void return."
" Then, again, the Lieutenant Governor is accufed
" for proroguing the AfTembly returned in I'jZji
*' and at lall dillblvinc: them."
" The Lieutenant Governor anfwcrs, and it is
*' nor denied, tliat tlicre was no bufinefs, durin^-
" t!iat ti.-nc, tliat made it expedient to call them to-
**gerhcr-, that, upon their full meeting, though
" tlicv fat thirty days, they had palled but one bill;
*' that every meeting is exj)enrivc to the Cjovernment,
*' a3 v.cil a^ to the members ; and that no apphcation
*' wa:; evtr made tohi, i, during all that time, to call
f them together. And, as to the dinblution, it ap-
2 <' pears
*' pears that one third of t!;c Afi'Jtnbly was either ab-
*' lent or dilqualifiecl ; tli:it the Ipcakcr was too ill to
"attend; and that, upon rulmiittinf? this flate of
•' the AfTcni'jIy to t!ic Council, they v/crc unani-
" moiifly of opinion, that rhc Affembly ought to bcdif-
** folved ; lb ihat here, a.; well as in all the antecedent
*' cliargcs, the Council are implicated in the fame
*' Clinic, as equally combining; lo fcivc the Licute-
'* nant Governor's Faftion."
" 71ic laft charge atrainfl the Lieutenant (jovcrnor,
* to piovc the comhii^aiion, is, th^t he prorogued
' the hift AfTemMy, in 1790, upon the day appointed
' for the tii;d of an clciiion petition, againll three
' of the pcrfons returned for King's County, though
* the V i'nclTes for the petitioners were aflembled at
' a conhdeiable exuentc."
" It is alleged, by the T>ieutenant Governor, that
" this prorogation was not of his motion, but rc-
*' quelled by the AflTemhly ; that the rcafons flated in
" the Alfcmbly for dehring this prorogation were,
*' that there iiad been a fuddcn thaw, which, if it
*' continued, would make it dangerous for the mem*
*' hers to return to their own homes ; that the public
*' bulinefs was fmilhed ; and that feveral declared they
** would liiy no longer ; and, in latH-, two gentlemen
" went
^^S^s^
[ i6 ]
** went home that very day, and another the day*
** after ; that it was probable, if the Committee fat
•' to try the eleftion, there would not in the end be
" a fufficient number left to prefent the bills, and the
*' bufinefs of the whole Scflion would be loft ; and
** that the Council had requefted him to comply with
«' the wilhes of the Aflcmbly."
*' None of thcfe fa£ls arc denied, or the reafoning
•• anfwered. And it is proper to obfcrve here, that
»* the Petitioners againil this return for King's
*' County, inftead of proceeding to the trial of this
** eleftion at a fubfequent feffions, withdrew their
«' Peiition."
** Another charge againft the Lieutenant Gover-
"nor, is, that he, having a (hare in all confifcations
«* from breaches of the laws of trade, and frauds on
" the cuftoms, appointed the Controller of the Cuf-
*' toms to be Sheriff; thereby veiling the power of
*' returning juries to try thefc caufes ; in which he,
*' himfelf, with the Lieutenant Governor, were to
*• be fubllantially parties iaterefted."
*• This cha'-gswas abandoned at the hearing by the
*• Council. It is totally unfupported with pro^^/*
•* The Lieutenant Governor, however, in his dc-
*' fence.
[ '7 ]
^' fence, produced precedents of other perfons hold-
" ing both the offices i and it appears, belide, in fad,
" that there was not one jury impanncllcd bv Mr.
•' Douglas, to try any fuch caufe, during the whole
" of his Shrievaky."
" Having gone through the fevcral charges againfl
" the Lieutenant Governor, the Committee will
*• proceed to confider thofe againll the Chief Jullicc,
*' witli as much brevity as the nature of the cafe will
*' admit."
" The firft three charges relate to a tranfaftion in
♦* the time of Lieutenant Governor Tattcrfon, and
" cannot be connct'ted with any of thefe, which are
** brought to prove n Combination with Lieutenant
** Governor Fanning."
" That tranfaftion came before this Board, and
" took up a great deal of time, and ended at IhII; in
** an order to difmils fevcral perfons from their
** offices. The Complaint was for illeg;illy confifcat-
*• ing lands belonging to feveral of the proprietors ;
** and difol)cdience to your Vlaj (ty's orders, to lay he-
*' forethe Alfcmblya diajght of a bill to remedy this
K ;n i .,nft ; n.> .»> //^ /> f f/i'ci^,
/
C " Upon
[ i8 j
*' Upon that occafion the Chief Judice was at firft
** named as one of the dchnqucnts ; but afterwards,
** they being fatisfied that the Chief Juftice had con-
** ftantly oppofed that mcafure, they ilruck out his
*' name. And now the Complainants attempt to re-
•' vive thofe proceedings, upon the ground of fome
** words, faid to be fpoken l)v him at the time he op-
•' pofed the meafure in Council, which, whether
*' true or fall'e, the Committee think ought not to
*' be brought forward at fuch a diftance of time, after
*' the whole Is clofed, for no better purpofe than to
*' cenfurc a pcrfnn, whom the former Complainants,
*' who were the injured proprietors, and more in-
*•■ tereftcd than any of the prell'iit accufcrs, have in
** effed acquitted, by dropping the profecution againfi:
*' him."
*' The fourth charge was pafTcd by, as it had ah'eady
** undi.rgo!ic an exaniinatio.i at this Board."
*' Which brings thcConnnittee tothe fifth charge."
•' The introdu'-lion to this part of the acculation
** Ij fo remaik.ible, that the Committee think it nc-
*' cc.raryto llate it verbatim."
** That the Chief Juftice, being joined in fli^ion
*' v.'ith the piefcnt Lieut'^'iruU Governor, tlTc"XtTor-
" nr y General, and the CoUcdor of the Cuftoms,
" has
[ »9 3
•* has made his office of Chief Juftice Inft rumen tat to
" the purpofe of that fa£lion, by perverting the law
*' in his judgements, difregardliig and refufing evi-
•' dence, fcreening and protedting the Attorney Ge-
*• neral againfl the accufations brought before him in
*' his Court, and mifdirccling :ind influencing juries
" to give verdids, unfavorable and unjuft, to thofe
*' who did not fall-in with the views of their faflion,
** in defiance of law and fa6t."
*' Thefc the Memorialifts acknowledge to be ge-
*' neral accufations ; but they are ready and able to
** prove it in many precife and fpecific articles,
** from which tiicy fcleft, and particularly charge,
*' thefc which follow."
" The Committee did not cxpc£l that the Com-
* plainants, after they had felcfted thefc fpecific
* fa£ls, to prove their general charge, would have
* produced general evidence of the Chief Juftice's
' general condu6l in the adminiflration of juftice ;
' but that, alter proving thcfe fele£l particulars*
' they would have left the general charafter of his
* mal-adminiilration to be inferred from thcfe in-
' fiances."
Ca
" A ge-
[ 20 ]
«* A general charge of mifcondui^, nnfnpported by
** fai^s, would have been njciflcd ; but, as the Com-
** plalnants, in tlie introduclioii to their fpecific
** charge, have arranged his general mlfcondud as a
«< Judge, the Chi.-f Juilicc has thought it nccef-
*• lary, in his defence, to examine a multitude of wit-
*' neflcs to his general demeanour in that office. Rc-
*' fides this, the Complainants have, by additional
** evidence, proJ.uced lihewilc a multitude of new
** depofitions, many of them containing new fa£ls ;
*' all of which, on both fides, the Committee have
*' laid afide for the reafon given at the clofe of this
** report, and have proceeded to examine the fpecific
«' faas/'
ifl Fa£t. That, in an indi£lmcnt of afTault and
*' battery againft one Lavvlor, lie fummed up the
*' evidence partially againfl the Defendant ; but that,
•* however, the Jury acquitted him."
** Five of the Jury, together with Mr. J. Robin-
** fon, his colleague, deny the charge ; at the fame
•* time, they acknowledge that others of the Jury
*' fupport it; and fome, even of thofe who before had
*' difprovcd it, were prevailed on afterwards to con-
*♦ tradia their iirft affidavit,"
« Thh
i
t " ]
*' This charge, of partial rumming up, couM only
'• be proved by flatiiig the evidence on botli fides,
** and the fpeciilc charge to the Jury; which not
*' bciiip; done, the Committee difmils this charge as
*' not proved."
" The fccond fpecific charge againfl the Chief
<' Tufticc i:-. for partiality in favour of the Attorney
«' General, in the hearing of a charge preferred
•• againft him by iMr. Cambridge. Here again all
*' the evidence is general."
«' Some of the articles, they fay, the Chief Juftice
*♦ would hear; others he would not, without fpccify-
" ing any. That the Attorney (General ufed impro-
«» per language to Mr. Cambridge, and was not rc'
" proved."
«' But, though the Chief Juflice might have pafllct
over this charge as fpccifying nothing; yet he has
' anfwered it, by ftating the nature of this hearing,
*' which chiefly confided of mal-praftice, in taking
*• double fees, ccc. That he heard the whole com-
*♦ plaint, without any partiality ; in which he is fup-
♦• ported by Mr. Robinfon, and Major Gray, the
*' two afliftant Jullices ; who add, that, with rcfpcft
*' to improper language, there was much on both
*' fides, fo tint the Court was obliged to interfere."
a " This
<
[ 22 ]
«' This Chnrgc, therefore, the Committee think
" proper to pa(s over."
«(
THIRD SPECIFIC CHARGE.
** That he fufTorecl, in a caufe of Dcbrifay and
Pattcrfon, improper evidence to be given, 5cc. The
*' aiiiwcr i";, that in that caulb the Chief JulUcc was
*' a Witncls, aiid therefore abdained from giving any
*' opinion, or taking any part in it as a Judge ; and
*' this is confirmed by Major Gray, the AilKiant
*' Judge, who fwears that he hJmfelf I'ummed up the
*' Caufeto the Jury.'*
*' Fourth fpcclfic charge againft the Chief Juftice,
*• for an illegal opinion, in rtfufing to admit the evi-
*' dence of a fctoff."
*' The anfwer Is, the judgement is appealed
*« from."
** The Committee take leave to obferve, that this
" caufc has been fmcc heard before a Committee of
*' Council ; who were of opinion, the Chief Juflice's
** deciiion, as the caulb llood upon the pleadings Dc-
*• low, was ftri(^tly and legally right; but that, under
*' the circumilantes of the cafe, the Defendant
»' lliould,
1^^
[ 23 ]
** fliould, upon payment of cods, 1)c adir.Ittcd to
** plead a fct-off; and that, for that purpofc, tho
*' caufe fliould be remitted : wh'ch report your Ma-
** jelly has been plcafcd to confirmt"
FIFTH SPECIFIC CHARGE.
** This is for admitting a deed in evidence, without
** proof, as an ancient deed. This, like the others,
•' may or may not be an erroneous opinion. The
** Chief Jufticc, however, offered to fcal a bill of
** exceptions, which was not accepted ; but the Dc-
•' fendant, Mr. Cambridge, was not hurt ; for, the
*' Jury found a vcrdift in his favour. Afterwards,
*' upon motion, a new trial was granted ; and
*^ the verdi£l in the fecond trial went for the Plaintiff.
" If the party has been injured, his lemcdy is in the
*' courts of law."
" Sixth fpecific charge is for threatening one of the
** Jury with punithment, if he did not agree witli his
*' brothers. Here, too, is a flat contradidion in the
*' evidence. Mr. Rohinfon, the Affiftant Judge, with
" fix of the Jury, fwcar they heard no fuch words ;
** and, in the opinion of the Committee, the weight
*' of the evidence is in favor of the Chief Juilice."
SE-
[ 24 ]
SEVENTH SPECIFIC C 11 A R G E,
*' The Chief Jufiicc is accufcd, for rcfuflng, upon
* motion, to grant a i\ow trial, in a caufc, Cam-
* hriJgc agaiiiA CIa;l«.. The cafe was, after the Jury
' iiad delivered their verdict, the Counfel for the
' Defendants piayed leave lo appeal ; which was
* granted, aiul entered upon record. The Chief
' Juftice was of opinion, the caufc was removed by
' the appeal, and not l)ctore the Court. 1 he Lieu-
' tenant (Jovcinor, upon application, faid the caufe
* was net before him ; yet, in point of law, the
' Committee apprehend the caufe was removed by
' the allowance oi the appeal ; and the hands of the
* Court tied -jp till the appeal was withdrawn, which
' was not done. T his, however, at the moll, was
' but an error in judgement."
EIGHTH SPECIFIC CHARGE.
" This is a cliarc;e a^ainft the Chief Tuftice, for
*' refufmg to Ixir a ciiallenjte made to one of the
♦•jurors by the defendant Mr. Cambridge, though,
" at the fame time, he admitted a challenge, made by
" the Profccutor, to be tiicd."
^Ir.
C 25 ]
" Mr. Cambridge's challenge was upon ti.e gfouhj
*• of affinity J which was known at tlic time the Ip , jal
*' Jury was ftruck in the prcfcnce of the patties and
•• their attorneys, and therefore came, in the opi-
«• nion of the Chief Juftice, too late."
** The i>1'' m'>io I to the other was, that he was a
<♦ fervantto Mr. ^.amhridgc; but that was not known
*' at the ti n ; the proof, however, failed, and he
•' was fworn."
" This too, if illegal, might have been corre6>ed
*' by a motion for a new trial ; and the vcrdidl would
*' have been fet alide."
COMPLAINT AGAINST THE
ATTORNEY GENERAL.
*' There arc five charges againfl: the Attorney Ge-
'* neral.'*
*' The Committee will begin with the fifth, as it
** will throw a light upon the others."
** Thii rontains two Icparatc fa£ls."
t
*' Firft, That, being employed for Cambridge and
** Bowley to foreclolc a mortgage, he, the Attorney
!> "General,
[ 26 1
" General, promifcd Mr. Walter Berry, a juniot
** mortgagee, lb to draw the bill that he might eafily
"defeat it; and that he would iiii^rucl Mr. Berry
" how to do it."
*' Second, That Mr. Spcncc, the Mortgngeor, having
*' entered into a Bond to Cambridge and Bowlcy, he,
'* the Attorney General, their Counlel, did advifc
*' the fame Mr. Walter Berry to fell the Mortgaged 's
'' goods, to prevent their execution."
*' Thefe two fafts are proved only by Mr. Walter
•' Berrv."
*' The Attorney General has given a full aii-
" fwer to all this acculhtion, by a narration of the
•' whole tranfadion ; and the cafe is proved by indif-
*' putablc documents."
" It appears, by this cafe, that the Attorney Cc-
** ncral performed his duty to liis cli_nt fkilfuliv,
*' and honcrtlv ; and at Lift obtained a file- of the
•' Mortgageor's goods, JVJtwithftanding the fraudulent
*' laic made of tlr:m by Mr. Walter Berry, the w'r-
" nefs, wlio was then Sheriff, to difappoint K'ltii'.
*' Cambridge and Bowley, who never fulpccicd th.c
•' Atrorncy General of betraying their caufe, l)ii'
*' brought a complaiul before thr Lieutenant Ciov(.r-
i.or
C 27 ]
** nor and Council againft this Mr. Walter Berry,
•* not only for the fraudulent falc, but for oppofing
*' the Coroner with force and fire-arms in the cxecu-
*' tionofa writ to feize and fell the goods belonging
** totheMortgageor. Mr Berry, in his dcfcnce,charged,
** as he has done here, the Attorney General, for hav-
** in(T advifcd the fraudulent fale ; but, after a full
*' hcarinr^, the Council not onlv condemned Mr.
*' Walter Berry, but difmilfcd him from his ofFice
** of Sheriff, and cleaved the Attorney General from
" this imputation. The fame Mr. Walter Berry,
" afterwards, in a fubfequent memorial, acknow-
** ledges his fault, and begs pardon, not only for his
*' mifcondui^, but for his reflexion and falfc charge
*' againft the Attorney General."
" All thi: while Cambridge and Bowlcy were upon
*' good terms with the Attorney General, and ene-
*' mics to Mr. Berry ; and, in this very proceeding,
" not onlv acquicfced in the acquittal of the Attor-
*' ncy General, but profecuted this Mr. Berry to a
** difmillion of him from his office of Sheriff. Bur,
afterwards, when they quarrelled with the Attor-
« ncy General, they took up this very ' ^'alter Berry,
♦* whom they thcmfelves had difcreditcd, to be their
♦♦ friendly wiiiiefs, not to exculpate himfelf frorn
** his own miicondudt, but to revive lus original
ij
D2
'* charge
it:
[ 28 ]
" charge againft the Attorney General, who had been
*' acquitted by the Council."
** This charge is, therefore, entirely groimdlefs."
** The fourth charge, which the Committee took
" next under their confidention, is limilar to the
** former.'*
*' That the Attorney General, as Counfel and At-
** torney forCaiiibiidgc and Dowlcy, not only deferted
** the caufe he was concerned in for them, but dif-
** clofcd his Client's fccrets ro Mr. Grandin the Ad-
*' verfary's Attorney, and inflrucled him how to de-
** feat the Piaiaiiirs in the recovery of their demand."
*' Thi^ is proved by Mr, Macgowan, the fubfequent
*' Attorney for Cambridge and Bowley ; and by Mr.
*' Grandin, the Adverfary's Counfel.''
" But the affidavit is quite as general as the charge,
*' neither flating the a(5lion, nor pointing out any one
*' particular wherein the Attorney General had dif-
*' clofcd his Client's fcctets ; or how, or in what
'* manner, he had inftru^led the Adverfary's Counfel
*' to defeat the Plaintiffs' demand."
«'0n
C 29 ]
** On the contrary, the Attorney General not only
** denies the charge, butftates the caufc, the hiftoryof
" the proceedings, the reafon why he dcfiftcd from
" being any longer concerned for Mefl". Cambridge
*' and Bowley, and the afliftance he gave Mr. Mac-
** gowan, the fubfequent Attorney, how to proceed,
*' by giving him all the light he could upon the fub-
*' jed, and delivering up to him all the papers,"
** And Mr. Grandin, the only witnefs, to prove
•* his revealing his Client's fecrets, has been flruck
•* off the Roll of Attorneys for mifconduft."
** This account of the tranfadion is not replied
<♦ to ; and the principal fafts are confirmed by Mr.
" Charles Stewart."
1*1
I
*• This charge is, therefore, groundlcfs.'*
THE THIRD CHARGE.
" *' That one Samuel Braddock, having retained the
*' Attorney General, he, in part, conduced his
" caufe ; and afterwards deferted him, and conduced
♦' the caufe of his adverfary.'*
•* The
If'
\ '
[
30
]
** The nnfwcr to tliis is a denial, accompaiiicd witli
•' a iiariative of tlic aJvic;3 lie pave Mr. Ihacldock,
" upon an iipplication to him, and rffufing to be con-
*' cerncd for him."
*' The fact difputcd in this charge is the gift of a
** guinea, as a retaining fee."
•' Walter Bcrrv, the witnefs mentioned in the fifth
*' charge, is the only witnefs to this ta£l."
•* The guinea, nccording to his account, was not
*' paid in fpcci-:-, \v\t credited in an account between
*' him aad Aplin ; fo that Hraddock knows no more
«* of this UcX than Walter Bcrrv told him."
.II'
*« Ther.fi: of the evidence turns upon the affirma-
*' tion, cj denial, of Herry and JJraddock, of the
" payment of this retaining fee."
*' The cxaniination of this fa*^ came twice before
«' tire Supreme Court. Or.ce, at a time after the ac-
^- tion v;as cor.inicnced, durnig the fufpcnfion of Mr.
^' Ch;tf !u''iccStcvv;irt, when Ihaddock demanded, in
*' Court. I'..' .lUOanceof tlie Attorney Cieneral ; and
*' called Air. ;)-rry,l!ie;i in Court, to prove the retainer.
'^ Air. Ci.a;ks Stewart fwears, that at this time Mr.
•' Berry
[
3t
]
:
Berry denied the aflertion of Braddock, who laiJ^
Berry had intbrincd huii he had retained Aphn."
•' This i^ not denied, in the reply, by either Berry
" or llii.duock.'*
•* Tlie otlicr time thif, came before the Court was
*' upon the coniphiint of Mr. Caiuhridgc againil tlic
*' Attorney General, when Mr, Mewait was rcilouu.
*♦ Upon this cccaiion the fad difputcd is, whether
*' Ihaddock declared he had, or that he had not, been
*' retained."
*' To tl:c former declaration four witncfTes have
«' made aiFul.'.vit ; to the latter, o;dy two, Mr. Rc-
•« binfon t!ie Alviilant judge, and Mr. Mallard ; but
*' the Committee, knowing none of the paities, arc
** not abh" to determine which are to be believed, iSo
< money was paid ; but ciedit given for it, \:\ a:i ac-
' count iKtwecn licrry and the Attorney Cicncral-,
' nor is it laid whether the fee wa> given for advice.
4
C
i
»' or as a retainer in the caulr. 'i his f;:ft depends
*' altogether upon the evidence of berry, above-mcn-
" tioned, wh.o, as Mr. Charles Stewart has fvvorn,
*• has himfclf contradided this very fafi."
" Tlie Committee are therefore of opinion, this
*• charac is net proved."
u Ti,.-
':l i
'•■ I;
1 . :
i\
f 32 3
** The firft and fecond charges are confined ia
*» words fpoken by the Attorney General } the firft,
" in a convcrfation with Mr. John Hill ; the fecond,
" in a convcrfation with Mr, Robertfon."
*' By the firfl: fct he is charged with faying to Mr*
*' Hill, that, as Cambridge and Bowley had taken
*' part againft fuch men as the Governor wifhed to
*' have choicn, he adviled the faid Hill to take ad-
•• vanta[?,e of thac a^ainft them, by extending his
*' trade, as they would be obliged to leave the ifland."
*' ifl-, The words are denied by the Attorney Ge-
*' ncral, who gives a very particular account of the
*' meeting between lliem, with all the convcrfation
" that pniTcd ; none of which is denied in reply by
*• Mr. Hill."
♦' 2d, Hcrry, to whom Mr. Hill favs he told
" this convcrfation the moment he left the Attorney
♦' General, is not brought forward to conhnvi it."
" The fet of word.-i in the fecond charge is a de-
*' claration to Mr. Robertfon in a private conver-
♦' fation."
*' xMr.
[ 33 1
" Mr. Robertfon having, as Sheriff, attached the
" goods of one Mamvaiing, the Attorney General
*' cxprelTed a wonder that the other creditors of
*' Manwaring fubmittcd to the operation of the
*' Law, and taking Robertfon aiide faid, by keeping
*' in with thefe fellows we could ahvays have a jury
*' to our minds."
<* The Committee do not well undcrilard the
«* nicanincr of thefe words, *' who tlicfe fellows are''
" that are alluded to ; there arc none fpokcn of but
*' the ether creditors of Manwaring; and how they
<' Ihould be able to procure friendly juries the
*•' Comaiitree cannot coninrchend."
told
** The words arc denied by TvTr. Aplin ; and Mr.
" Robe'tfon, who i^: the only witncfs produced to
*' prove them, can hardly be bLlicvcd, when we
" compare a Ictkr written by him to the fame At-
" torncy General a ycnr afterwards, wherein he,
*' \ipon the vaeaiicy of the Attorney's (Mhce, ad-
*' vifcs Mr. Aplin to apply for it, laying, he may
«' command his ii'.tjrclts, and will chcaifully facri-
♦* ike a monih lo ir, if necelliu-y."
" This friendly ofTer of hi^ fu vices, to recommend
♦' a man to the liiR oiFicc at the lar, is hardly con-
E ♦' fiftent
1 !
Hi.
i
I
3+ ]
*' fiflcnt with a belief that the fame mail had ufcct
•' word.'i thnt, ia his opinion, made him unlit to
*'■ piadifc at the bar in any fituation."
" The Committee, upon the whole, are of opi-
•* nion, that tliefe, as well as all the other charges,
" arc iuliv anJ hiii'v anfwcrcd."
(<
And they beg leave to clofc with this remark,
*' tliat admitting them all to he true, there is not
" among them one that has the leaft reference to
" a!:yl'.'.ch Combination, as tlic Complainants make
*' \]'.? r ii)uiid-woik of tlieir accufatioii a<rain(l all the
" d.kaJants jointly.'*
*' Th.cre is but one charge in cfTc^l: againft the
*' C(;Ilc51or, which confills of certain declarations
" made by him at one time to Mr. Hill, and at
*' nnor':cr to Mr. Steele : tlicfe words are made to
*' i\:\t<-, tliat the Lieutenant Governor was united to
" t!'e:n ; iirmicly, the Stewarts and Attorney Gcne-
'■ Ki! i ar.d to recommend it to Mr. III!!, to unite
*• '>■. :th th' '.n, that Cam!)ridge and Bowly were to be
•' har:a!V. .1, :\ud forced to quit tiie illaiul ; thar l/j,
" a-; iKiv.d otiiccr, could promote, or obflruiSt, his
1 1 d'.l'. .
•' Aud
[ 35 ]
!
1
:
** And Mr. Steele Is produced as a witncfs, to prove
" other declarations, that, as Hill had relufcd his aid
" to tho party, he, the Collcdor, would diftrcfu
*' him to the utmoft of his power."
" Thcfc words, if they had been followed by a6ls,
*' and thofc aiSls proved, would certainly have made
*' good the gci\cral charge of a fadious confpiracy
«' in all the Defendants ; but no fuch are produced
*' before the Committee."
na
\
*' The words, if true, arc certainly the evidence of
* a very protligatc and corrupt heart ; and, though
' they are by no means fufficicnt to criminate the
* other parties, would, as againft the Colkdor him-
*' J'^lf, though they are words and no more, prove
*' him unfit to fcrve your iMajeily in any capacity
*' whatlbcvcr."
!i ■
iy
«' But thcv arc as fully and pofiflvcly denied, as
*' they arc changed ; and, in that cafe, tlic oaths on
" both fides being equivalent, the charge cannot
" be conlidcred as proved."
«' BcliJcs, the Colle£lors, denial U materially aided
«« bv the evidence of Mr. Owen ; who lays, he was,
♦' durin"- Mr. Townlhend's viiit at Lewis Town,
\l 2 '* WUCIC
:n
ili
r 36 ]
*' where this convcifatioii is faiJ to Imvc paffctl, in
*' company with the Collc£lov at all times when
*' thvV wcic topeilicr, at hreaklaft, dinner, anJ
" flipper, and never heard one word of politics
*' pr.l's between them.'*
** I'^pon tlic whole, the Committee arc of opi"
*' ::ion, wiilch ihcy hini'bly beg leave to lubmit to
*' vf>iir Majtily, that the complaint ought to be
*' difmincd."
«< '1'}
i ;ic
Committee cannot conclude, without
" takitig notice vt a verv mnvarrantablc attempt of
*' the Ccmr.l.iinanis to introduce a vaft body of
" evidence againd tlie Defendants, which they had
" no opportunity of aniV.ciinp;. — \\ lu n the com-
" plaint fi-.f: ca;nc to this J]o;ud, with the aihdavits
' in rt;r>po!t of it, ti e C'Mv.mittcc ordered it to
" be liaiur.iittcd to tliJ ]ila;ul ; ::\\\d the Di-fendants
*' vwv.", wiiiiip. a cert: in time, to deliver tlieir
•' a:v'\ cr, tor^tlicr with a ccpv of tlirir cvidcnc.\
•' to tlic Coniplriinant';, v, Iio liad ihe liberty to rcpiv,
" and tlicy were to deliver tiieir reply within a ccr-
" t:i;n timt ; ap.d tlie:i ihc \v!u)!c was to be immc;-
** mediately font over to l.n^^laad. Underthis liberty
2 " of
1 1
r 37 J
" of reply, thc"compIaiiiants thonc;lit fit to load their
*' fird accufation witli new matter and i.evv fu£lb *."
*' But the Committee have taken no notice of
" thefe addition?! complaints.'*
HIS MAJESTY, fakwg thcfiid Re^
port into confidcration^ wa^ plaijccl^
nz'ith the advice of Lis Privy C-uncily
to otprove tbereoj ; and io ordcr^
that the I'aid fevcral CompLunts be,
and they are hereby^ difmij^ed this
Board*
STEPHEN COTTERELL.
" f.
^ y
'(I ,'.
;^f.)
* The grcatcft part of this additional evidence has fince been
found to be fabricued by the malevolent and unprincipled
agcDts of tlie Conr'plainants 5 for, on a very general ciofs-exa-
mination, the witncifLS examinid by them have depofcd, that
they never fwore, or meant to fwcnr, to the fat^.s contained in
the ("lid atlditioiial afTuiavit', brought forward by the Complain-
ants, And it was verv unfortunate, that thefe crofs-cxaminations
did not arrive till iho lic-iring was over: fur they would have
difcloftd to their L'juilliips and the uorld tlie moft malicious
and wicked plor, on the p-^rt of the Complainants, and their
cmiirarits, to runt '.lie Dttpndants, that was ever dcvifcJ by
tlie maliy-nitv of m.uikind.
I
fciil