more easily put on the open, cheerful countenance, that my friends advised me to wear. His Lordship came towards me and said, "I was dressing in order to go to court; but, hearing that you were at the door, who are a man of business, I determined to see you immediately." I thanked his Lordship, and said that my business at present was not much; it was only to pay my respects to his Lordship, and to acquaint him with my appointment by the House of Representatives of Massachusetts Bay to be their agent here, in which station if I could be of any service(I was going on to say-"to the public, I should be very happy;" but his Lordship, whose countenance changed at my naming that province, cut me short by saying, with something between a smile and a sneer,)

L. H. I must set you right there, Mr. Franklin, you are not agent. B. F. Why, my Lord?

L. H. You are not appointed.

B. F. I do not understand your Lordship; I have the appointment in my pocket.

L. H. You are mistaken; I have later and better advices. I have a letter from Governor Hutchinson; he would not give his assent to the bill.

B. F. There was no bill, my Lord; it was a vote of the House.

L. H. There was a bill presented to the governor for the purpose of appointing you and another, one Dr. Lee, I think he is called, to which the governor refused his assent.

B. F. I cannot understand this, my Lord; I think there must be some mistake in it. Is your Lordship quite sure that you have such a letter?

L. H. I will convince you of it directly. (Rings the bell.) Mr. Pownall will come in and satisfy you.

B. F. It is not necessary, that I should now detain your Lordship from dressing. You are going to court. I will wait on your Lordship

another time.

L. H. No, stay; he will come immediately. (To the servant.) Tell Mr. Pownall I want him.

(Mr. Pownall comes in.)

L. H. Have not you at hand Governor Hutchinson's letter, mentioning his refusing his assent to the bill for appointing Dr. Franklin agent?

Sec. P. My Lord?

L. H. Is there not such a letter?

Sec. P. No, my Lord; there is a letter relating to some bill for the payment of a salary to Mr. De Berdt, and I think to some other agent, to which the governor had refused his assent.

L. H. And is there nothing in the letter to the purpose I mention? Sec. P. No, my Lord.

B. F. I thought it could not well be, my Lord; as my letters are by the last ships, and they mention no such thing. Here is the authentic copy of the vote of the House appointing me, in which there is no mention of any act intended. Will your Lordship please to look at it? (With seeming unwillingness he takes it, but does not look into it.) L. H. An information of this kind is not properly brought to me as Secretary of State. The Board of Trade is the proper place.

B. F. I will leave the paper then with Mr. Pownall to be L. H. (Hastily.) To what end would you leave it with him? B. F. To be entered on the minutes of that Board, as usual. L. H. (Angrily.) It shall not be entered there. No such paper shall be entered there, while I have any thing to do with the business of that Board. The House of Representatives has no right to appoint an agent. We shall take no notice of any agents, but such as are appointed by acts of Assembly, to which the governor gives his assent. We have had confusion enough already. Here is one agent appointed by the Council, another by the House of Representatives. Which of these is agent for the province? Who are we to hear in provincial affairs? An agent appointed by act of Assembly we can understand. No other will be attended to for the future, I can assure you.

B. F. I cannot conceive, my Lord, why the consent of the governor should be thought necessary to the appointment of an agent for the people. It seems to me that

L. H. (With a mixed look of anger and contempt.) I shall not enter into a dispute with you, Sir, upon this subject.

B. F. I beg your Lordship's pardon; I do not presume to dispute with your Lordship; I would only say, that it seems to me, that every body of men, who cannot appear in person, where business relating to them may be transacted, should have a right to appear by an agent. The concurrence of the governor does not seem to me necessary. It is the business of the people, that is to be done; he is not one of them; he is himself an agent.

L. H. (Hastily.) Whose agent is he?

B. F. The King's, my Lord.

L. H. No such matter. He is one of the corporation by the province charter. No agent can be appointed but by an act, nor any act pass without his assent. Besides, this proceeding is directly contrary to express instructions.

B. F. I did not know there had been such instructions. I am not concerned in any offence against them, and

L. H. Yes, your offering such a paper to be entered is an offence against them. (Folding it up again without having read a word of it.) No such appointment shall be entered. When I came into the administration of American affairs, I found them in great disorder. By my firmness they are now something mended; and, while I have the honor to hold the seals, I shall continue the same conduct, the same firmness. I think my duty to the master I serve, and to the government of this nation, requires it of me. If that conduct is not approved, they may take my office from me when they please. I shall make them a bow. and thank them; I shall resign with pleasure. That gentleman knows it, (pointing to Mr. Pownall,) but, while I continue in it, I shall resolutely persevere in the same FIRMNESS. (Spoken with great warmth, and turning pale in his discourse, as if he was angry at something or somebody besides the agent, and of more consequence to himself.)

B. F. (Reaching out his hand for the paper, which his Lordship returned to him.) I beg your Lordship's pardon for taking up so much of your time. It is, I believe, of no great importance whether the appointment is acknowledged or not, for I have not the least conception that an agent can at present be of any use to any of the colonies. I shall therefore give your Lordship no further trouble. (Withdrew.) Benjamin Franklin, Works (edited by Jared Sparks, Boston, 1838), VII, 508-512.

CHAPTER X-COLONIAL COURTS

69. How Juries were Summoned (1710)

BY "A SWISS GENTLEMAN”

The author of this piece was a Swiss, who went out to America in behalf of a land scheme. Other colonies had substantially the same jury system. - Bibliography: Channing and Hart, Guide, §§ 146, 147; B. V. Abbott, Judge and Jury.

TH

HO' it is Commendation sufficient for our Laws, to say they are as nigh to those of England, as conveniently may be, yet we have in several things refin'd upon the English Laws. For instance: The Jurors are not here returned by the Sheriffs, but the Names of all the best qualified Persons in the Country are agreed upon and settled by Act of Assembly, and put together into a Ballot-Box. At the End of every Court this is set upon the Table, before the Judge and Bench, and after it is shaken, a little Child draws out 48 Names, which are read, and a List of them taken by the Sheriff, that he may know whom to summons. These 48 are put in the second Division of the BallotBox, out of which, at the opening of the next Court, another Child draws 12, who are to serve as Jurors; and if any just Exception be made, he draws others, untill the Jury be full. The same Method, with little Alteration, is taken in returning Juries for the Sessions of the Peace. The Names of those who have serv'd are put in the third Division of the Box, where they lie till those in the first Division are almost all drawn, and then they are again put into this. The Reason of their lying in the third Division is, because one Set of Persons should not be too much burthen'd, but that all should have an equal Share of the Trouble, as nigh as may be.

The Ballot-Box hath three Locks and Keys, kept by three several Persons appointed by the General Assembly, whereof the Judge of the Court is one; neither can the Box be opened without the Presence of those three.

The Reason of all this Precaution in returning Jurors is, for the better and more effectual Preservation of the Lives and Estates of the Inhabitants. For the Sheriffs, Marshals, and all other such' Officers, being

appointed by the Governor, and keeping their Places only during his Pleasure, if the returning of Juries lay in their Power, 'tis more than probable, they might at some time or other, pack such Instruments as would be ready to gratify him, to the Ruin of any Person against whom he had conceiv'd Malice or Displeasure. Considering therefore, how easily frivolous and unjust Prosecutions are set on foot, and Evidences fit for any Turn may be procur'd, nothing can be a greater Security than this noble Law; for after all the Arts and Management betwixt a bad Governor, Judge, and Attorney-General, to carry on an illegal Prosecution, the whole Contrivance is at last spoiled by the Impossibility of Packing a Jury for the Purpose.

A Letter from South Carolina Written by a Swiss Gentleman (London, 1718), 23-24.

70. Charge to a Grand Jury (1753)

BY LIEUTENANT-GOVERNOR ROBERT DINWIDDIE

Dinwiddie was lieutenant-governor of Virginia from 1751 to 1758, and his letters show him to have been vigorous and able. The charge to the grand jury was often made a political harangue. — Bibliography: Winsor, Narrative and Critical History, V, 268-270.

Gentlemen of the Grand Jury:

YOU are here assembled and sworn to the Execution of the most Important Trust that can be repos'd in Men. To enact Laws, is indeed the Work of the Supream Legislature, but upon the Execution of those Laws, not only the Happiness, but the very Being of Society more imediately depends. It is therefore from You, Gentlemen, that the Public is to derive whatsoever distinguishes a free and well govern'd Comunity from a Band of migrating Savages, who have no Principal of Action but Appetite, and no rule of Right, but Power. Temptations to Violence, and to Fraud are so various and frequent, that it is no Wonder they are not always resisted. Mankind are perpetually deviating into Disorder and Escaping from the Bond of Society. It is therefore necessary for the Magistrate to watch the Earliest Efforts of Oppression, and the first Sallies of Intemperance with the greatest Circumspection, and imediately to restore the general Order as often as it is interupted. The Crimes by which religion is Prophan'd, Allegiance ·