the public business must stand still. What can Mr. Clark keep his seat for.

My regards to all friends & believe me ever

D: S:

Y: Most Aff: Humb' Serv

JNO WATTS.

One of the several officers going in this ship shall have your papers in charge.

The Honb! Gen. MONCKTON.

j

SAME TO SAME.

NEW YORK, 6th Nov. 1764.

DEAR SIR,

I did myself the pleasure to write to you by Davis 11th Oct. & deliver'd your Papers, &c. to Maj Duncan.

I have heard nothing from Pollard since he left this place, you must have a little patience with him I believe, Coll: Vaughan was by the last intelligence on his way from Oswego to Niagara, under whose wings he is gone.

Gen. Gage has not yet order'd the clothing into my custody.

t's

Mr. Apthorp has qualified & M Surveyor Gen! of the Customs too who is of course appointed a supernumerary member, but we are like to have a disagreeable job proceeding from the old L thirst of wrangling & the folly of his family & Irish connection together The Jury brought in fifteen hundred pounds damages for Forsy against Cunningham, you know the case for pursuing & stabbing him naked, Five hundred pounds real damage

Forsy proved, so the smart money is but a thousand curr! this the knot think exorbitant & have upon an old instruction the 32 I think, countenanc'd by the L G appeal'd to the Govt & Council to try the cause De Novo & thence if they don't like their decision to appeal to King in Council, an instance never known before & so unconstitutional that not one lawyer not even their own would draw the writ of appeal. They were forc'd to have recourse to old Nicolls & one Coghill Knapp a transport. If the appeal had been by writ of error there are precedents in abundance, but to have facts taken out of hands of a Supreme Court & a Jury & from them transferr'd, first to the Council here then home, the lawyers say, is so absolutely unconstitutional that I begin to apprehend we don't construe the meaning of the instruction right- They argue if a verdict at Court by the subjects peers is to be over rul'd when there is neither error, nor what they call matter of equity in it, what use is there of Court or Jury at all? They are a mere matter of empty form. What ever be right I wish the old fellow dam'd & the Knot too, before they brought such a critical thing into dispute in these sore times, when it could easily have been avoided & when there never was a precedent of it before, since the Colony was settled, but like Satan he would damn himself & his posterity to appear great, which he thinks such controversies make him, having an unbounded opinion of his own parts & being on the side of prerogative for which he would sink all America right or wrong.

I am now to thank you for your favor by Lady Susan who has brought her pigs to a fine market to be sure & he seems to be no less out of his way than she is, a poor devil marrying above himself without independency is a toad under a harrow, when before he might have ap'd Caesar himself, had a merry light heart, & have got six or seven hundred a year by it, independent as a prince- Nothing could be more romantic than this heterogeneous match,

except the manner they are dispos'd of to settle lands, the Lord knows, where among woods, savages and wild beasts. The family his honor tells us however are not so much absorb'd in grief as to forget the main chance, the adventurers forty thousand, L. J. twenty, L H. twenty, & a M Upton twenty; a pretty little patch of a hundred thousand acres. This if true will be doing business indeed, 'tis well we have been combatting the old man about his thirst for granting, or not an inch would have been left, but as it is I believe it will be a pretty distant settlement, for several of the reduc'd officers as sharp as hawks, have not known where to perch, the new scheme for N. Hampshire Bounds may indeed help Your friends, tho' it is much against the grain, will give no unnecessary delays you may be assur'd tho' they begin to think, as matters are going at home, they might as well have been a little more bountiful to their poor countrymen and neighbors who wanted and would have settled it. But tems passé

The old gentleman tother day sent me £746 1 10 pursuant to the inclos'd acct for the moity of a quarter's salary and sundry douceurs of land which hits his taste exceedingly. When an instruction starts that feeds his ambition & vanity, he is as tenacious as a girl of her virtue.- But those against land, that is, against his interest weigh about as much as an old Almanac. By these two poor ingredients only, the poor old soul is kept alive, its a pity the nostrum is so efficacious

I did intend to have sent you a Bill of Exchange, by this conveyance but we cannot draw & the Navy Agents tell me they do not- By the Packet I hope to do it on Sun

day next

They are all in a flame at Philad Franklin is sail'd agent again & Hamilton treading on his heels, so M Temple the surveyor tells me, who is just come from thence.

I would advise their going in the same ship, who knows what a months passage might do coop'd up together. Pray

tell Napier I wrote him 28th ult. by a Bristol man in answer to his from Scarbro' & sent History of Bts expedition from old hard faced Barr- and if you should see Coll Amherst tell him the Byrds are not cook'd, when they are I shall pay my respects to him— I begin to see Land on tother side 'tis time to bring too & to finish my JournalI am always very faithfully

D: S:

Y: Aff: Humb. Serv

JNO WATTS.

My respects to all friends and the family, little & big.

The Hon. Gen! MONCKTON.

SIR,

W. SMITH, JR., TO MONCKTON.

NEW YORK, 5th November 1764.

I now take the liberty you was pleased to allow me of writing to your Excellency, whenever any thing occurred of importance to the Colony.

You know, Sir, that one of the King's instructions directs the Governor to permit appeals from the Common Law Courts to the Commander in Chief and Council, and thence to his Majesty in Privy Council. Our lawyers have hitherto interpreted the Instruction to mean, that the cause upon the removal to these superior judicatories, comes up only upon a Writ of Error, and is to be tried as causes in error are in England.

Upon this principle the security of trials by Jury remains unshaken, because matters of fact are left to the Jurors, and are never unravelled on Proceedings in Error.

I wish this interpretation was as well grounded, as it is

salutary to the rights of the people: But I have long supposed that the aim of the ministry, was to make Plantation decisions both with respect to law and fact, upon the whole merits, reversible on an appeal to the Crown as the dernier resort.

Several reasons induced me to be of this opinion. It increases the power of the Crown, and the dependency of the Colonies. It falls in with the ministerial principle that the King's will is law in the Provinces. The King in Council has received and determined upon such appeals from the New England Colonies. The instruction was formerly by express words confined to cases of Error, and was first altered in those given to Sir Danvers Osborn, after the acquiescence of the Eastern Colonies had given the Crown a sort of possession. The term "appeal" is borrowed from the Civilians, and I suppose those who introduced it, intended to give it a Civil Law operation, and render the administration of justice amongst us, controlable by the King, as that of the Prætor in the Roman Provinces by the Emperor, on the appeal to Cæsar.

What construction the Government will adopt is a matter of anxious expectation. I have for many years been fearful of the day in which the experiment will be made. A late verdict will now bring it on.*

In our last term (26th of October) the jury gave £1500. damages, for the plaintiff Thomas Forsey against Waddel Cunningham, for an assault and battery. The defendant's agents offered an appeal to the Judges of the Supreme Court and security to prosecute it. They rejected it and refused an entry, the Chief Justice declaring (which might have been omitted) that it was an impertinent application, and that if he did not think it imputable to ignorance, he would take further notice of those who applied for the entry.

* See letter of Justice Livingston, 26 January, 1765, infra.