There was not any sort of law enforcement of any kind in South Carolina except in Charleston. They did not have any courts. They did not have any sheriffs. If you wanted to have anybody arrested, you had to go to Charleston and swear out a warrant for their arrest. If you wanted to have them tried, they had to be taken to Charleston. These people lived in the back country way up the river from Augusta, Georgia. There was almost nothing in the way of law. The only court they had was in Charleston. The Royal Army, the King’s Army, was sent up there once in a while.

A group of people called themselves Regulators. There were regulators also in other parts of the colonies. They took law and order in their own hands and dispensed it in their own idea of justice with a vengeance and without mercy.

"In September 1769, Daniel ROBINSON and a posse claimed that a horse in the stable of John HARVEY, a settler on the Noble’s Creek in Long Cane, was stolen. Acting as their own judge and jury, they sentenced John HARVEY to 500 lashes. They then carried out their own sentence to the rhythm of a dance tune played on a drum and a screechy violin.

"Fifty men each gave him 10 lashes, 500 lashes. They bundled some canes together and hit him with it. John HARVEY, being an attorney himself, sued ROBINSON in His Majesty’s Court of Common Pleas in Charleston and obtained a judgment in the amount of £50. £50 was a lot of money at that time.

"Because of a severe disagreement between the Chief Justice and the Associate Justice of the Superior Court of the Province of South Carolina, the case ended in the Governor’s Council where the two judges tried to explain their argument over the charge to the jury. Here is a letter that one of the justices wrote to the governor which I think explains this very well." (Ralph F. HARVEY)

"Sometime ago an action was brought in Her Majesty’s Court of Common Pleas by John HARVEY against D. ROBINSON for an assault in which HARVEY, the plaintiff, obtained judgement by default on Tuesday October 13. In the inquiry of damages the plaintiff HARVEY laid evidence before the court to the following effect:

"In the month of September 1769, the plaintiff HARVEY was seized by a body of people amounting in number to about 50 or 60 people, among whom the defendant ROBINSON was there. He appeared to be captain or leader of the party that was of a place called Noble’s Creek. They chained the plaintiff HARVEY with a wagon chain and locked him to a sapling.

"They then stripped him to his shirt, keeping him chained in that manner for about two hours. They whipped him alternately for the space of an hour with bundles of rods of switches. Each person giving him 10 stripes until he received 500 stripes. ROBINSON gave him 10 stripes in his turn. The blood streamed down his back. From that account of one of the witnesses who saw him some days after, it appeared his back was then in a shocking condition. It was very sore and very festered.

"One of the witnesses, before HARVEY was whipped, was invited by the mob to join them. He refused to do so. He told them it was inhumane of them to use their fellow creatures in that manner. He asked why they whipped him. They answered because he was roguish and troublesome.

"On being asked how they did prove him to be so, they answered thay would not be that troubled. The mob remained during this transaction of drum beating and fiddle playing. One of the witnesses said he heard from from some of the mob that the resentment against HARVEY proceeded from a horse being found in his possession that he had no right to. Mr. Justice LOWNDES asked one of the witnesses if ROBINSON was not a fair and honest character. He said he was, but afterward had some doubt thereof. It seemed of late he did not so well deserve that character. No evidence was offered by the defendant.

"After I had recapitulated the evidence of the jury, I thought it my duty to interpret for them. The case had been fully proved. It appears to be an assault of the most extraordinary nature that had ever befallen, within knowledge, that in in a civilized country under the government of laws for 50 to 60 people to assemble together to seize some of His Majesty’s subjects. Then in the King’s peace to assume for themselves the power of judgement of his conduct according to their observed creed and indirected ideas of justice and influence inflicting so cruel and severe punishment." [The document goes on a bit farther, but we weren’t given the end of it. Irma C. Lampton]

This document came out of Her Majesty’s Public Record Office in London, England. Whether that horse was stolen or not, it was not proven. There was no evidence given that it was stolen.

John HARVEY must not have been such a bad man. He had three sons who became ordained ministers of the Gospel.

Perhaps because he was an attorney and knew the law, some of the people were trying to take the law in their own hands found him to be troublesome. All of his sons and all his grandchildren were married into and associated with some of the finest families in Georgia.

John HARVEY died not long after that ordeal.

SC Ar/m - 20 DN
SC Court of Common Pleas
Judgment Rolls
Box 90A, 1771, no. 98A
Box 91A, 1771, no. 198A

SC Archives Roll 77
                    AD 833

GEORGE the Third, by the Grace of God, of Great Britain, France, and Ireland, KING, Defender of the Faith, and so forth: To the Provost-Marshal of our Province of South-Carolina, Greeting: WE command you without Delay to attach the Bodies of David Robinson, Solomon Nusam, Laurence Rambo, Reuben Rambo, _^^and John Burghaltor, -

wheresoever they may be found within _^^{or in said} this Province, so that you compel them to be and appear before our Justices at our Court of Common Pleas, to be holden at Charlestown, on the first Tuesday in January next, to answer to John Harvey of a Plea wherefore with force _^^{& arms} at Nobles Creek in Granville County in our Province aforesaid on him the said John Harvey they made an assault and him the said John Harvey did there beat, bruise, whip, imprison for a long space of Time, wound & ill-treat so that his life was greatly despaired of & other Enormities to him there did to his Damage One thousand pounds lawful current money of our sd. Province and against our Peace and so forth

And have you then and there this Writ.

WITNESS Rob^t Pringle, Esq., one of our sd. Justices at Charlestown

the third Day of October in the Year of our Lord
One Thousand Seven Hundred and Sixty nine and in the ninth Year
of our Reign.

/s/ Parsons, Plts. Atty.

David Robinson was attached to answer to John Harvey of a Plea - Wherefore with force and arms at Nobles's Creek in Granville County in the Province aforesaid on him the said John Harvey he made an Assault and him the said John Harvey did there beat Bruise whip imprison for a long space of time wound and Ill treat so that his life was greatly dispaired of and other Enormities to him there did to his Great damage and against the peace of our Sovereign Lord the now King and so forth and thereupon the said John Harvey by James Parsons his Attorney Complains That Whereas the aforesaid David Robinson on the Twenty ninth day of September in the year of our Lord One thousand Seven hundred and Sixty Nine at Nobles's Creek in Granville County in the province aforesaid with force and arms to wit with Swords Staves Whips Switches Fists Sticks and Clubs made an Assault on him the said John Harvey and him the said John Harvey did then and there beat Bruise Whip Imprison and willy Treat and kept and detained him the said John Harvey in prison for a long time to wit for the space of three Days against the Will of the said John Harvey and against the Laws and Customs of this Province and other Enormities to him there did so that his life was greatly despaired of to the great Damage of the said John Harvey and against the peace of our Sovereign Lord the Now King Wherefore the said John Harvey saith he is worse and hath sustained Damage to the value of One thousand pounds lawful Current Money of the said Province and therefore he brings his Suit and so forth,

/s/ Parsons, Plts. Atty

John Harvey

v.

David Robinson

Filed 2nd Novem^br 1771

Novem^br Term 1771

Ordered for Jud.

Parsons, Atty.

We find for the plaintiff -
Fifty pounds with Cost of
Suit

     Gabriel Manigault,²
           Foreman

                      Recorded

1. Dicton: Dicton is a French word which means 'proverb,' 'maxim,' or - most literally - 'saying.' In this context, it means 'verdict.'

2. Gabriel Manigault: This was the elder Gabriel Manigault who was the namesake of him who, from Goose Creek, was delegate in 1788 to the ratifying convention in Charleston for the federal constitution.[See Debates in the Legislature and in Convention of the State of South Carolina on the Adoption of the Federal Constitution.] About Gabriel Manigault, the following is recorded in Appleton's Cyclopedia of American Biography, edited by James Grant Wilson and John Fiske. Six volumes, New York: D. Appleton and Company, 1887-1889:

GEORGE the Third, by the Grace of God, of Great-Britain, France and Ireland, KING, Defender of the Faith and so forth. To the Provost-Marshal of our Province of South-Carolina, Greeting. Whereas at the Court of Common-Pleas holden at Charlestown the Second Tuesday in this Instant, November, John Harvey did implead David Robinson in an action of Trespass and Assault to which said action the Defendant made Default, and thereupon the Court gave judgment for the said John Harvey. But, because it is unknown what Damages the said John Harvey hath sustained in the said Cause, by Reason of the Premises: Therefore it is Commanded, that you immediately Summon Thirty Men, drawn by Ballot, pursuant to the Act of the General Assembly in that Case made and provided, then and there forthwith to inquire what Damages the said John Harvey hath sustained; and that you make due and true Return thereof at Our said Court: And have you then and there this Writ.

Witness the Honourable Thomas Knox Gordon, Esquire, our Chief Justice at
Charlestown, the Twelfth Day of November in the Year of
Our Lord One Thousand Seven Hundred and Seventy One and
in the Twelfth Year of Our Reign,

/s/ Parsons, Plts. Atty.

AND now at this day to wit the second Tuesday in November In the Year of Our Lord One Thousand Seven Hundred and Seventy One - untill which day the said David Robinson had leave to the Declaration aforesaid of the said John Harvey to imparle¹ and then and there to answer and so forth before the before the Justices of our Lord the King of the Court of Common Pleas now held at Charlestown Comes the said John Harvey by his Attorney aforesaid and prays that the said David Robinson, Altho' Solemnly Called, comes not nor saith any thing in Preclusion of the Action aforesaid of the said John Harvey but made Default WHEREBY the said John Harvey Remains against the said David Robinson therein undefended Whereof the said John Harvey ought to Recover against the said David Robinson his Damages aforesaid, but Because it is unknown what Damages the said John Harvey hath sustained by Reason of the Premises THEREFORE it is Considered that the Provost Marshal of the Province aforesaid so Summon Thirty Men to be drawn by Ballot pursuant to the Act of the Generall Assembly in that Case made and Provided then and there forthwith to Enquire what Damages the said John Harvey hath sustained by reason of the Premisses -

/s/ Parsons, Plts. Atty.

Judgment signed 19th Decemr _^ ^{12th Novemr} 1771
/s/ Jas. Johnston C. C. P.

At which Day before the Justices aforesaid at Charlestown aforesaid came the aforesaid John Harvey by James Parsons his Attorney aforesaid and the _^^Provost Marshal aforesaid having made due return of the Writ of Enquiry aforesaid And the Jurors thereby summoned impanneled and sworn pursuant to the Act of the General Assembly aforesaid having found that the said John Harvey had sustained Damages on Account of the Premises over and above his Costs and Charges by him about his Suit in this behalf expended to fifty pounds Currency.

THEREFORE it is Considered by the Court now here that the said John Harvey Do recover against the said David Robinson his Damages so found by the Jurors as aforesaid And also One hundred and Twenty Eight pounds & Eight pence for his Costs and Damages _^^{by him} about his Suit in this behalf expended to the said John Harvey by the Court now hereof with his Assent adjudged which Damages amount in the whole to One hundred and seventy Eight pounds and Eight pence Lawful Current Money And the said David Robinson _{* * * * *} in Mercy and so forth.

/s/ Parsons, Plts. Atty.

Judgment signed 19th December 1771

Jas. Johnston C. C. P.

Copy of Mr. Cheif Justice Gordons¹ Complaint
against Mr. Justice Lowndes² viz.
To His Excellency the Right Honorable
Lord Charles Greville Montagu³ Captain
General & Commander in Chief in & over
His Majestys province of South Carolina

May it please your Excellency ~

           Impressed as I am with the Idea of the respect that is due to his Majestys Judges and of the Dignity of the Superior Court of this province wheren I have the honor to preside, it is with the deepest concern that I find myself under the necessity of representing to your Excellency the strange, improper, and unconstitutional conduct in a late affair of a Gentleman who has the Honor to fill a seat on the Bench with me. Your Excellency, I hope, will do me the Justice to beleive that the Reluctance I felt upon this occassion could have been conquered by nothing but the strong sense I have of the Duty I owe to my Sovereign and to his good subjects of this Province, a Duty which shall ever direct & govern my Conduct and and,⁴ of Course, must supersede Every other Consideration.

           Some time ago, an action was brought in his Majestys Court of Common Pleas by John Harvey against David Robinson for an assault in which Harvey the plaintiff obtained Judgment by default on Thursday the 19th Day of October. On the Enquiry of Damages, the plaintiff Harvey laid evidence before the Court to the following Effect: that, in the month of September in the year 1769, [21] The plaintiff Harvey was Seized by a large body of people amounting in number to about fifty or sixty, among whom the Defendant Robinson was who appeared to be the Captain or leader of the party; that, at a place called Nobles Creek, they chained the plaintiff Harvey with a Waggon Chain and lock'd <him> to a sapling or young tree; that they stripped him to his shirt &, after keeping him Chained in that manner for about two hours, they whipped him alternately for the space of an hour with bundles of rods or Switches, each person giving him Ten Stripes; that Robinson gave him Ten Stripes in his turn; & that the blood streamed down his back; &, from the account of one of the Witnesses who saw him some days after, it appeared that his Back was then in a Shocking Condition, very sore & much festered; that one of the witnesses, before Harvey was whipped, was invited by the mob to Join with them; that he refused to do so & told them it was inhumane in them to use their fellow Creatures in that manner; that he asked why they whipped him and they answered because he was roguish & troublesome; &, _^^on being asked how they did prove him to be so, they answered they would not be at the trouble; that the mob had, during this whole transaction, a drum beating & a fiddle playing. One of the Witnesses _^^said <he> heard from some of the mob that their resentment against Harvey proceeded from a Horse being found in his possession that he had no right to. On Mr. Justice Lowndes asking one of the witnesses if Robinson was not a man of a fair & honest Character, he said he said he was. But afterwards, he made some doubt thereof & seemed to think that, of late, he did not so well deserve that Character. No evidence was offered by the Defendant. [22] After I had recapitulated the Evidence to the Jury, I thought it my duty to observe to them that the case had been fully proved & appeared to be an assault of the most Extraordinary nature that had Ever fallen within my knowledge; that, in a Civilized Country under Government of laws, for fifty or sixty people to assemble together to Seize one of his Majestys Subjects then in the Kings peace & to assume to themselves a power of judging of his Conduct according to their own absurd crude & indigested Idea of Justice and of inflicting so Cruel and Severe a punishment was such an audacious insult against the laws of their Country and the publick peace and tranquility as called Loudly for the interposition of Justice; that, if such alarming _^^daring and open violation of the rights of mankind were to pass unpunished, that⁵ the Kings Judges would no longer have occassion to Sit upon the Bench of Justice nor they, as Jurors, to pass upon the trial of their fellow Subjects. I therefore did recommend it to the Jury ( the case being fully proved & uncontroverted by the Defendant) to give the plaintiff the full Damages laid in his Declaration or Such a Sum as they should think adequate to the Injury he had sustained.

           After I had thus delivered my Sentiments to the Jury, Mr. Justice Lowndes Spoke and Observed that I was a stranger in this Country⁶ & to the Situation and Circumstances of it and, of Course, unaquainted with the many Grieveances & oppressions that the people laboured under; that, tho' he could not in Strictness of Law pretend to Justifie the act in Question, yet the Great provocation <against which> the people had to raise their Resentments were, in his opinion, Such an Extenuation of it as ought to Induce the Jury to find very Small Damages;⁷ [23] That this was _^^not a Criminal action at the Suit of the Crown, where the fine imposed by the Country might be remitted by the Lenity of Government, But was a private action for Damages at the Suit of the party who would be intitled to receive the full Sum they would give him; & therefore he hoped they would give him very little, if any at all, and the more So as the plaintiff was of the most infamous Character and deserved not the Countenance of either the Court or the Jury.⁸       ~       Struck with the Glaring impropriety (to give it no harsher appelation) of a Judge from the Bench in holding Such language, I thought it my duty to interpose least⁹ the Jury might receive an unfair & improper bias, which I did by observing to them that it was true I was a Stranger in the Country and in great measure unaquainted with the Situation & Circumstances of it; that I knew of no greivances nor oppressions the people laboured under but, if they did, the Kings Courts were open to all his Subjects where their Complaints would Surely be heard and all their Injurys as surely redressed in a Constitutional manner agreeable to the rules of Justice and to the laws of their Country. But, if the people were permitted to be the redressers of their wrongs & to cut and carve for themselves as their own absurd notions or ingovernable passions might lead them, there would be at once an end to all civil Government. I further observed to the Jury that they were not to be influenced by what had been thrown out in regard to the plaintiffs Character; that that was not the point in Issue for them to try nor had their¹⁰ been any evidence of it laid before them. Mr Justice Lowndes, then in a State of Temper and in a <manner> very [24] Unbecoming the G<r>ravity and dignity of a Judge, complained of being called to order, said he had a right to speak his opinion there, that his vote was as Good as the Cheif Justices, and that he had an Equal right to Sit where he was.¹¹ Tho' he seemed inclined to Enter into an altercation too illiberal for me to engage in, I only observed that I had no intention to dispute his right of Sitting where he was or of delivering his opinion.¹² But I conceived it to be my duty to prevent any thing from being Laid before the Jury that had not been given in Evedence. Mr. Justice Lowndes then reply'd with much heat That he would prove Harvey the plaintiff to be a villan & a Rogue; that he had been tryed in that Court and burned in the hand; &, for that purpose, <he>¹³ desired that Mr. Johnston, the Clerk of the Court, might be sworn; & <he> called for the Book¹⁴ & said he himself would go of<f> the Bench & be Sworn & Give Evidence of it. Mr. Justice Savage then observed that it was tottally imaterial what Crime the plaintiff Harvey had been tried for or Convicted of; that had he been even convicted of a capital Crime & under Sentence of death; that Still he was under the protection of the law untill the Sentence came to be Executed; and that no Circumstances of that kind could Justify or excuse the assault Committed against him; that, admitted that he had been burned in the hand, he had suffered the punishment of the Law and was then & at the time of the assault Equally intitled to the protection of the Law as any other of the Kings Subjects.¹⁵

           This, may it please your Excellency, is the Substance of what happened on the occassion which I thought it my duty to represent to your Excellency and I humbly [25] Conceive that the conduct of Mr. Justice Lowndes as above recited was highly improper & unbecoming the Station and Character of one of the Kings Judges ~ First, because the words spoken by him with a view to moderate the damages against the Defendant had, in my opinion, a Direct and manifest Tendancy to weaken in the minds of his Majestys Subjects those Obligations of Submission which Every member of the Community owes to the Kings Government and to the Established laws of the Country and, Secondly, because his mentioning a matter to the Jury not given in Evidence was Contrary to law and Justice, and because his attempt to Supply Testimony by himself and Mr. Johnston, after the Evidence was closed and the Jury charged, was rather acting as a keen & favored Council¹⁶ for the Defendant than <as> a fair upright and Impartial Judge.

           All which is Humbly Submitted to your Excellency by your Excellencys St.¹⁷

/s/ Thos. Knox Gordon

Mr. Justice Lowndes answer to the complaint
Exhibeted against him by Mr. Chief Justice Gordon

To His Excellency the Right Hon'ble
Lord Charles Greville Montagu
Captain General Governor & Commander
in Chief in and over his Majestys
Province of South Carolina

May it please your Excellency

           I am happy in having, at last, after a delay [26] Of Six weeks, an opportunity of answering the railing accusation brought against me by his Honor the Chief Justice respecting my conduct as one of the assistant Judges of the province. I am happy that I am to answer before your Excellency to whose Candor, Impartiality, & Justice I Readily Submit. I am happy that the transaction of that Day which has brought upon me the Resentment of the Chief Justice where, in a Publick Court before a Cloud¹⁸ of Witnesses, a very respective Jury, & a Discerning audience, their unprejudiced unbiased Intimacy will Determine the truth in any point wherein his Honor and myself may happen to Differ.

           The Character of a Good Subject, my Lord, I have ever been Solicitous should Distinguish my life, the Character of a fair upright & impartial Judge, Now for the first time called in Question by Mr. Gordon, I was always Hopefull my most Earnest Endeavours would have procured. Unfortunate then am I in these respects, If Duty to the King & his good subjects of this province Should urge or authorize a well founded complaint against me. But, my Lord, the Consciousness of mine own Integrity, of the purity of my intentions, of the motives of my actions Enables me to meet with great indifference and Composure this rude malignant attack upon me. I have for some time expected my remove from the bench but I Expected it from an Exertion of Power from an Exercise of prerogative. I hope the Cheif Justice does not mean to give Coulour or pretext for¹⁹ at the Expence of an honest mans reputation.       ~       

           In the Cheif Justices charge against me, there are many things _^^mis Represented, many things [27] Agravated, many circumstances Supposed t'will Strike your Lordships observations. If your Lordship will give me leave to state the matter in my own way, as well as I can from recollection and the best help I can obtain, ultimately referring where we differ to to indifferent Witnesses of which there are many, I do admit the Cheif Justice has pretty nearly represented the Evidence as it was given in the case of Harvey against Robinson, Some circumstances Excepted which appeared to me very Extraordinary and difficult to account for. On the presumption of the Witnesses _^^being unprejudiced Impartial men, particularly one of them at least Said he never enquired for what Cause such a Number of people were assembled together, did not Enquire on what account & for what reason Harvey was to be punished in the very remarkable manner they proceeded with him and, in short, tho' he was very minute and particular in relation to the number of Stripes, the bundles of rods, the persons who used them, the Quantity each laid on, yet he was tottaly ignorant in such other matters I think would <have> more naturally engaged the attention of an uninterested by Stander. The Witnesses also Differed in respect to the severity of the whipping. One of them says the Stripes were but Slightly laid on while, by the accounts of others, it is hardly possible to conceive that Harvey Should have Survived one moment.. His punishment, however, as this in my apprehension, <is> very immaterial to the point in Issue between the Cheif Justice and myself.²⁰ I threw it out without design to lay any great Stress upon it, Tho' I confess it had, together with some other particulars, weight enough with me who have seen numberless instances of [28] Glaring partiality on Similar Occassions to have induced (had I been of the Jury) a great doubt and suspicion of their Testimony.²¹ This being a matter particularly within the province of the Jury, it went to them without any observations at all from me Tending to weaken or invalidate what the Witnesses had Sworn. Their verdict, Nevertheless, shew their sentiments were not very different from mine.²²

           I admit also that the Cheif Justice has, as well as I can Recollect, pretty nearly represented to your Lordship what he said to the Jury on that Occassion &, I will add, very properly said to them. From the Complexion of the Case heard on one Side only and taken independantly and unconnected with a vast variety of concomitant & Relative Circumstances and incidents, a Strangers Detestation and abhorrence might well be Excited; and I was Extreemly Tender and Cautious when I spoke to the Jury of saying a Single word that might, in the least, Glance at any thing like a Disapprobation of the Cheif Justices Sentiments.

           I wish I could, my Lord, admit also that the Cheif Justice had dealt fairly with me in the representation he has given to your Lordship of what I said to the Jury. I will endeavour to relate it and <to do so> with the most scrupulous regard to truth. I know the Extent of your Lordships Power over me. I will not prevaricate or tell a falsehood for any fear of the forfeit I may incur. My intention was good. My heart approves it. My Judgment Dictated to me. I am regardless of Consequences.

           My Address to the Jury was in Substance and nearly in words to the following Effect: [29] That I should not have added any thing to what his Honor the Cheif Justice had delivered to them were it not that I was more particularly acquainted with the Circumstances & Situation of the province at the time of the Transaction which was now the Subject of their consideration than his Honor could be supposed to be, as he was but Lately come into the province;²³ That, during my Seat upon the Bench, these troubles and Disorders had arisen that had thrown the whole Country into a flame; that it was well known I had Exerted my utmost Endeavours to bring the offendors to a Sense of their Errors & to a Submission to the Laws; That the Sentiments the Cheif Justice had now Expressed were such as I had often occassion to declare from the bench; that I did not mean to Justifie or Countenance the behaviour of the people called Regulators in the present instance or any other, if it was illegal and contrary to law; and it would have been unnecessary for me to have said any thing upon the occassion did it not appear to me that the Defendant had been Extreemly ill used by his attorney who, after Entering an appearance for him, had deserted his cause and Given him up to the mercy of the prosecutors by which means every circumstance was brought forth with all their aggr_^^avations against him; & not one word <was> offered in his behalf by way of allev<i>ation or Extenuation of his offence in mitigation of Damages; tho' I was convinced, from my own Judicial knowledge, that, if the Council²⁴ had gone into a defence for his client, many things would have come out that would have had an influence on a Jury in moderating of Damages, tho' not in Exculpation of the party; that many cases nearly allied to the present had come before me in Judgment; that the Ravages and outrages committted by gangs of the vilest bandittie²⁵ had Stirred up the people and provoked them to many irregularities & Extravagances beyond the verge of the law; that Several of the principal of the [30] Regulators had been made amenable to Justice, had been prosecuted, and Largely fined; but the Lenity of the Government, from a particular consideration of their Case, had interpos'd and remitted their fines and, so far as it could, <the Government> seemed _^^inclined to draw a vail²⁶ over all past transactions; That the present case would admit of no releif from Government; it was a civil action of the Suit of the party and, whatever Damages the Jury gave, the Defendant must pay or, if not able, be in Gaol at the mercy of the plaintiff; that it appeared from the Evidence that the Defendant was a poor man but had a good Character;²⁷ that the Characters of the partys were a very proper Subject for a Jurys investigation²⁸ and had a due influence on their minds in assessing the Quantum of Damages which was their Exclusive Province; and that I was warranted to Say from the record of the Court of Sessions that the plaintiff stood in no favourable point of view in that Respect²⁹ (not that he was a fellow of the most infamous Character & deserved not the Countenance of either the Court or Jury as the Cheif Justice has it³⁰). Here I was interupted very abruptly and <caused> to retort the Cheif Justices words in a very strange, improper, and unconstitutionable manner; and any warmth of Temper I might unwarily have been betray'd into may very Justly be attributed to that Cause;³¹ tho' I cannot recollect any Expressions I regret³² or that were unbecoming the occassion; it might indeed have offended the Cheif Justices high notions of preeminence³³ to be told that I was not to be called to order in giving my opinion, when Judiciously required of me, and that there I had an equal voice with himself. The Cheif Justice Supposes I was inclined to enter into an altercation too illiberal for him to Engage in.³⁴ I wish he had been more Explicit and had informed your Lordship what part of my behaviour indicated such an inclination.³⁵ I am sure there was an ample field open [31] To me. The truth is I did not reply one word to Mr. Justice Savage who took up the argument on the Same Side with the Cheif Justice or, did I say more, if So much as he has represented in my Reply to him. The Compliment therefore that he would pay to his own discretion and politeness is rather over restrained. After I had been interupted by the Cheif Justice & reprehended for laying matters before the Jury, which he was pleased to say had not appeared in Evidence, I observed that what I had alluded to were matters both of record and also of publick Notoriety; but, if his Honor required other proof, I desired the Clerk might be sworn or I would my self go to the Bench and prove what I had asserted and <prove> that the plaintiff, for a capital offence, had been before me Capitally Convicted & burnt in the hand.³⁶ ~

           My Lord the Cheif Justice insisted much on this Circumstance in his first application to your Lordship as degrading the Character of a Judge; it is nevertheless founded in the Clearest Law. I would not, on any triv<i>al light occassion, interfere in a matter of that sort. I never did it before in any one instance But where it is of importance in a publick as well as a private view. I never did. I never shall think it below the Character of the highest & most exalted _^^station or degrading even to a Judge in his Scarlet Robes³⁷ in the Cause of Truth to give Evidence before a Jury of his peers. Judge Gascoignes declaration to Henry the fourth that he would condemn a man in his Judicial capacity, that in his private, he knew to be innocent is, according to my limited Idea of Justice, a law absurd and Inhumane.³⁸ ~

           Your Lordship will permit me to call to your remembrance the unhappy State of the Province at the time Harvey received the treatment for which he brought this action to be compensated in Damages. Memorials and [32] Petitions were repeatedly delivered in to Every branch of the Legislature by the freeholders & best Settlers in the Back province Complaining of the Devastations & Ravages Committed by Gangs of Robbers who burnt their houses, Stole their Goods, Cattle, and Horses, and inflicted the most Cruel & Barberous injustices on their persons, Oblidging them, for their mutual Security, to neglect their Employments & means of Support and associate together as the only means of Defending of their Distressed Situation would admit of. A number of incontestable proofs verified the Justness of their Complaints & not a man in the province Entertained the least Doubt of their Grievances. Stimulated by these provocations, Urged by the necessity of their Case, & the impracticality of bringing these offenders to Justice in a common and regular Course of Law, as well from their number, as the Great Distance to Charles Town where <the> only Courts of law are held, & the Dangers to be Justly dreaded in leaving their familys unguarded and Defenseless, the Regulating plan was adopted In prosecution of which they resorted to arms, apprehended whom they thought proper, & in General took upon them selves the Redress of their own Grievances, no other adequate Remedy being then afforded them. The part I acted then, My Lord, at this Crisis is well known to the whole province and particularly to the Gentleman who then presided in Government.³⁹ My frequent applications to him for assistance and Support to the minesters⁴⁰ of Justice, which I am in Duty bound to acknowledge, he allways paid particular regard to. My charge Delivered to the Grand Jury about that time, ready to be produced to your Lordship if Required, the Endeavours _^^which I used with Success to bring some of the principal actors in that Scene of regulating to Justice, and my conduct at their trials will best Demonstrate & Evince if it was xxx xxxxx _^ ^{my view} to weaken in the minds of his Majestys Subjects those obligations of Submission [33] Which Every member of the Community owes to the Kings Government and to the Established laws of his Country. ~ If such, my Lord, had been my views and if Such had been the Tendancy of my Conduct, I should not have been marked out as an object of their implacable resentment. Schemes would not have been formed to get me into their power and perhaps Some Examples of punishment would now have been wanting⁴¹ to deter these people from a repetition of their offences. No, my Lord, I did not at this time of Danger Shrink from my Duty either to my King or my Country. I was pusillanimous or passive.⁴² I gave my utmost assistance to bring them to a Sense of their Error and to a Submission to the Law. It pleased Government to adopt Lenient Gentle measures towards them and pay particular attention to their Situation & Circumstances, being well convinced of their Grievances. Proclamations were issued promising the Kings gracious pardon on Condition they would disscontinue their illegal practices & be Conformable to Law. Fines that had been imposed upon them, within the Governors power of remissions, were remitted. Fines that Exceeded his power of remission were Suspended till the Kings pleasure could be known. The minestry⁴³ were apprised of those things. They gave their Sanction to them & the King absolutely remitted his fines. The General wish & Desire _^^{of the Province} Co-incided with the views of Government that a veil Should be drawn over these unhappy transactions & the people have been Quiet and peacable Ever Since. Having partly obtained their ends, the removal of the Rogues from amongst them, and the Expectation of Circuit Courts where only their Complaints Can Surely be heard, and all their Injurys as Surely redressed in a Constitutional manner agreeable to the Rules of Justice & Right Hitherto witheld from them [34] Contrary to the first principals⁴⁴ and conditions of Law. My Quarrel, I confess, with them was now at an end, For tho'⁴⁵ I never abated of my duty as a Judge while they continued refractory and in opposition to Government. Yet, Since they have returned to their Duty and Subjection, I Embrace them very Cordially as fellow Subjects and a valuable part of the Same Community. ~ My Lord, the plaintiff Harvey was one of these Vagrant Rogues who infested the Back Country. ~ It was known Judiciously to me he was Convicted of an offense which, by the laws of England & the laws of this province, was Capital & excluded from the Benefit of Clergy⁴⁶ at the time it was Committed, fortioneatly⁴⁷ for him, the law here had Expired before his trial and he was therefore only only⁴⁸ punished as for a felony at Common law and burnt in the hand. Whereas, had he been apprehended a little Sooner, he would most certainly have been hanged. This man brought his motion for Damages. The attorney, who had been retained by the Defendant & had Entered an appearance for him, did not appear. Judgment went, therefore, by Default and Harveys Witnesses only were produced. The Cause was going to the Jury with all the aggrevations that the Council⁴⁹ could give it against the Defendant. The Plaintiff stood by with a piteous Distresst & Melancholy Countenance calculated very opportunely to Excite Compassion & with the presumption in his favour of being a very good harmless Creature. I have not the least doubt in my mind but the Jury would have given him the full Damages laid in his Declaration agreeable to the Cheif Justices Direction. ~ My Lord, I who saw the Farcial Scene & knew the man and his merits could not reconcile to my duty Either to the [35] King or his good Subjects of this province to stand neuter and Countenance the Imposition. Neither would my oath of office permit me to do it. I was Sworn to do right _^^to the utmost of my power to all people as well the poor as the Rich. I could not help Speaking a few words which appeared to me indispensibly necessary to clear the cause of the refuse in which it's studiously wrapped up. The truth of what I mentioned will not be Controverted and, as to the propriety of it, your Lordship is now to determine. If it conduced to full compleat and Impartial Justice, I conceive it was of the very Essence of the Cause before a Jury. Your Lordship will Easily apprehend the fatal Consequences that might have Ensued from large Damages being given in the present. How many people there are now usefull Subjects in the same predicament with the Defendant! But this is a Consideration more proper for the private Exercise of the Judgment than for publick disquisition. I have been forced in my Necessary Defence to go further already into this Delicate Subject than otherwise I Should have inclined to do. I acted upon good principals⁵⁰ under a full persuasion of being right and with a Single Eye to the Discharge of the trust Reposed in me. I knew not but from the trial that such a person as the Defendant Exhisted. I cannot in Charity be Supposed to have been influenced by any base or unworthy motive.⁵¹ The whole Tenor of my Conduct in life as well _^^as upon the Bench, I trust, will acquit me of any Suspicion of that Sort and, tho' I should allways be desirious of keeping my self independant of the Cheif Justice, yet I can truly say I never in my most Distant thoughts ever intentionally [36] Meant to offend him. The Cheif Justice has misrepresented me in saying that I hoped the Jury would give Harvey very little, if any, Damages at all. I should have been very Sorry they had not given him Some damages. It was and still is my clear opinion that the plaintiff should have a verdict in his favour and Costs to assent to the law. All I said went only in mitigation of Damages, which surely implys that Damages were to be given.⁵² Mr. Justice Savages observations and fallacious⁵³ and, in my opinion, quite foreign to the point. Who doubted the mans being under the protection of the law and who contended that the assault upon him was Justifiable? If I did, I retract my opinion in both Cases as the Effect of Shamefull ignorance. No, my Lord, the Cheif Justice had acquitted me of such Gross absurdities. He has told you, your Lordship, that I informed the Jury the assault upon Harvey was not to be Justified in Strictness of Law and that the words spoke by me were with a view to moderate the Damages against the Defendant. Now any Damages whatever would have been incompatible with and repugnant to Every Idea of Justification. I cannot subscribe to the Cheif Justices opinion that the Jury were not to be influenced by what had been thrown out in regard to the plaintiffs character.⁵⁴ That was not the point in issue for them to try. Guilty or not Guilty would certainly have been the point in Issue on a criminal prosecution at the Suit of the Crown; and the Jury could have gone no further in their Enquiry; but it is hard to conceive, in an action founding in Damages, with the point in Issue⁵⁵ can be independant of the Jurys right of Enquir_^ⁱⁿg into and being influenced by Characters. If this consideration is to have no weight in assessing and proportioning Damages and not at all Enter into or be connected with the merits of the Case, what are the Grounds and principals⁵⁶ [37] upon which they are to ground their Determinations? Is the Degree of punishment or injury received the only Question for their Enquiry? If so, an honest peaceable man in the Lawfull Exercise of calling and a notorious abandoned thief in the possession of a stolen horse,⁵⁷ both being tyed up to a sapling or small tree, one or 500 Stripes are, according to his Curious postulating, when they bring their action, both being under the protection of the law, they shall both receive equal Damages because the Jury are not to be influenced by what may be thrown out in regard to Characters, that not being the point in Issue for them to try. I beg your Lordships pardon for troubling you with any comment on a matter which I should have attributed to inadvertance had not the Cheif Justice taken so much time for consideration. The Jury, my lord, consisting of some of the first Characters in the province, Notwithstanding the Cheif Justices interposition least⁵⁸ they might receive an unfair and improper bias, Excercised their well known Constitutional right in Judging for themselves in these matters. They gave a verdict for the plaintiff of £50 Currency damages to the entire Satisfaction, I beleive, of Every man in Court of the Bench.

           I do not, my Lord, I confess, see how the Cheif Justice can reconcile his Declaration that he had no intention to Dispute my right of Sitting on the bench and of delivering my opinion with his Conduct of that Day when he did most certainly attempt at least to Silence me because his Sentiments did not Correspond with mine. The Cheif Justice did not think proper to confer with the other Judges on the bench, at least not with me, previous to his Directory [38] the Jury.⁵⁹ I had, therefore, no other opportunity or time for delivering my Sentiments but after the Cheif Justice had spoke; &, if his Differing from me in opinion was Sufficient authority to Justify his Breaking in upon me while Speaking to the Jury, Was it not Setting up his own Judgment as the only Standard & Criterion of Right to which the other Judges were implicitly to Submit?⁶⁰ What occassion then, My Lord, for plurality of Judges if one is to prescribe to the rest? The constitution, my Lord, has provided a proper Remedy against mistakes and Errors of Judges in a Regular well known course of proceeding and particularly where a Jury has been misguided by misdirection of the Judge. I submit it to your Lordship and to the whole world whether it would not have been more Candid, more Liberal, & more Constitutional if the Cheif Justice had chosen that good plain path rather than Singulize⁶¹ his _^^{Entrance into} Office by a mode so novel, so unprecedented and, I may add, Injurious and Dangereous to Legal Freedom.⁶² ~

           Your Lordship remembers with what impatience and promptitude this Complaint was at first brought before you, during the Sitting of the Court & the very day the affair happened. Altho' your Lordship was out of Town ~ my offence was thought to be of so high a nature & so unpardonable that the publick business was interrupted & not a moment lost in laying it before your Lordship. The Cheif Justice will pardon me If I say he did not then seem to be very deeply impressed with the Idea of the respect that is due to his Majestys Judges & the Dignity of the Superior Court of this province when, upon a verbal accusation only, he procured me to be Summoned more like a footman than a [39] Gentleman of Station and Character to attend your Lordship in Council & there, without allowing me one moment for recollection, Consideration, or advice, Contrary to the _^ ^{principals of law and justice,63} contrary to the usage of his own Court in regard to the meanest Subject or greatest offender, urged me, repeatedly urged me, to justify myself _^^{in slander} against a vague General verbal accusation made up of Groundless asertions & false conclusions ~ My Lord, I owed it to my Character & office, to the publick, to regard to Legal forms & propriety, to assert the Right of a British Subject and insist upon having my charge in writing. I have now, after six weeks Suspence, obtained it. I have Endeavoured to answer it. I have not been used to contests of this kind. I never before had occassion to vindicate my Conduct. Your Lordship will be pleased to pardon me if I have not been so accurate and methodical as more Experience might have taught me. Truth has guided my pen. My case is now before you. I desire to have my Conduct Sifted and Scrutinized. If I am Innocent, let me be acquitted. If I am Guilty, let my guilt be made manifest.

Decem.^r 31^st 1771 ~                                 /s/ Raw Lowndes

[40]

Copy of the Reply of Mr. Cheif Justice
Gordon <to> the above answer of Mr. Lowndes ~

May it please Your Excellency

           I have seen Mr. _^^Justice Lowndes very long and labored answer to the representation of his conduct in the case of Harvey against Robinson which I lately had the honor to lay before your Excellency. My reply shall be very short. In it, as in my representation, I shall Confine myself solely to the matter in Question and the respect I have for your Excellency, as well as the regard I have to my own Character, shall prevent me from retorting Mr. Lowndes own illiberal Language to him or using any Expression unbecoming the pen of a gentleman. ~

           Tho', my Lord, I am ready to confess that I have many Foibles, yet I am bold to say vanity is not among the number and, as proof of that, I have not such high notions of pre-eminence as Mr. Justice Lowndes would insinuate. I am willing to be convicted Even by him and I do now frankly acknowledge that I was wrong in Breaking in upon him while he was speaking to the Jury. I acknowledge I should have reserved my observations on what he said untill he had concluded; but, when I heard a Judge from the bench laying new matter before a Jury that had not appeared in Evidence and, what besides, was inadmissable as Evidence, and Directing the Jury (sworn to find according to Evidence) to form their verdict contrary to the Evidence they had heard, upon his own private conception of the case & when I Reflected that, on a former occassion, when he differed in opinion with his Brethren of the Bench & the most Eminent of the bar, I heard the Same Judge declare that there⁶⁴ opinion might be law but he was sure it was not Reason, I say, my Lord, I _^^then began to doubt wither⁶⁵ it was a Despotick Jackise [40] Cade⁶⁶ or a limited English Judge I heard speaking. My Lord, the trial by Jury I have always considered as the Noblest priviledge of an English Subject. I could not bear to see it infringed upon. At least⁶⁷ the Jury should have been unwarrily influenced by what he said (which he acknowledged he has not the least doubt in his mind was the Case), I did break in upon him without waiting 'till he had Concluded. ~

           Mr. Justice Lowndes alledges I have misrepresented many things, aggravated many things, & suppressed many Circumstances. My Lord, I am far above such Conduct. I have misrepresented nothing, aggravated nothing, nor have I suppressed any thing. If any circumstance did Escape my memory, I was not then nor am I yet Conscious of it. But this I must say, that Mr. Lowndes has set down for himself some things which, if he did say them, I have tottaly forgot & has ommitted others which I well remember he did say. ~ In short, I rely upon it that my Representation to your Excellency is fair, Just, & true. ~

           My charge against Mr. Justice Lowndes is confined to a very narrow Compass. It consists of two parts: First, that the words spoken by him had a Direct & manifest Tendancy to weaken in the minds of his Majestys Subjects those obligations of Submission which every member of the Community owes to the King's Government. I rely upon it. I have represented his words truly and I admit it to your Excellency whether they have not the tendancy above mentioned. Secondly, because his mentioning a matter to the Jury not given in Evidence was contrary to law and Justice. This he admits he did do and attempts to Justify it. But, whether he is right or wrong in that point, your Excellency will be informed by the other Gentlemen of the Bench, if you would [42] think proper to desire their opinions. ~

           The remaining part of the last charge was because his attempt to supply evidence by himself and Mr. Johnston, after the Evidence was closed and the Jury charged, was rather acting as keen and forward Council⁶⁸ for the Defendant than as a fair, upright, impartial Judge. ~ My Lord, he admits the attempt to such Evidence by himself but insists upon it (tho' he would not do it in every case) that it is founded in the clearest law. If so, then why not in Every case as well as one in the cause of Truth? ~ But, how the law stands in that point, your Excellency may also be informed by the other Judges and, whether my observation upon his attempt to supply Evidence is not a _^^{fair &} Just one, I submit it to your Excellency and the impartial world. ~

           My Lord, the true state of the Question in regard to point of Evidence is nothing more than this, whether a man who is convicted of a Crime for which he undergoes the penalty of the law and is burned in the hand is afterwards to have that matter given in Evidence against him in another Cause, wherein he is plaintiff, in order to deprive him from Receiving Damages adequate to the Injury he has unjustly Sustained by the illegal act of another person and, if such Evidence is admissable, whether _^^if the defendant's attorney Neglects to offer it, a Declaration from the Judge after _^^the Evidence is closed, that he knows the fact to be so is right and proper & right to influence the Jury, & if it is wrong, improper, and right not to influence the Jury, whether that Judge who of himself officiously proposes to Swear to it after the Evidence is Closed and the Jury charged, acts decently and becoming his station.⁶⁹ ~

           The delay complained of by Mr. Lowndes arose partly from my attendance upon my Duty in Court, partly from a Message he sent me Requesting I would take no advantage of him by giving in my paper while he was in the Country to which [43] he was then going, and partly from some private affairs of my own which then Demanded my attention. ~

           Upon the whole, I submit it to your Excellency that Mr. Justice Lowndes has not by his answer vindicated himself from the charges brought against him. ~

I have the honor to be with the truest
Respect your Excellencys &c. ~        

/s/ Tho. Knox Gordon

Charlestown -            )
Jan.ry 1^st 1772          )

           The Board, after fully considering the arguments and allegations contained in the said Complaint and answer thereto & urged by both partys were unimiously of opinion that it did not appear their⁷⁰ was any reason to presume Mr. Lowndes had acted with partiality or under undue Influence⁷¹ and therefore advised his Excellency his Excellency to dismiss the said Complaint which his Excellency was pleased to do and the same is Dismissed accordingly.

	1. Mr. Cheif Justice Gordons: This was Thomas Knox Gordon whom Rebecca Starr (University of Gloucestershire), in her review - for The William and Mary Quarterly 60.1 (January 2003) - of Keith Krawczynski, William Henry Drayton: South Carolina Revolutionary Patriot (Baton Rouge: Louisiana State University Press, 2001), called "an Irish lawyer notorious for his cronyism." 2. Mr. Justice Lowndes: This was Rawlins Lowndes about whom the following is recorded in Appleton's Cyclopedia of American Biography:   LOWNDES, Rawlins, statesman, born in the British West Indies in 1722; died in Charleston, South Carolina, 24 August, 1800. His parents having removed to Charleston when he was very young, he was educated there, studied law, and took a high rank in his profession. In 1766 he was appointed by the crown associate judge. Within the succeeding three months he delivered the opinion of the majority of the court, which was contrary to that of the chief justice, in favor of the legality of public proceedings without the employment of stamped paper, waiving all consideration of the stamp-act as a constitutional measure, and only arguing from the common law with reference to the necessities of the case. In 1768 he moved a resolution, which was passed in the South Carolina assembly, for the erection in Charleston of a statue of William Pitt, in acknowledgment of that statesman's services to the colonies and the British constitution. In 1775 he was elected a member of the council of safety and of the committee that was appointed under it. In 1776 he was one of a committee of eleven instructed to draft a constitution for the province, and subsequently a member of the legislative council created by the constitution. In 1778 he was chosen president of the province, and gave his official assent to the new constitution. Savannah was soon captured by the British forces, Georgia succumbed, and South Carolina was threatened. Mr. Lowndes made a vigorous resistance, but, having fewer than 10,000 men in the field, he was unable to oppose overwhelming forces by sea and land. Charleston shared the fate of Savannah, and Lowndes was captured. He was subsequently a member of the South Carolina assembly when the United States constitution was submitted to the states for adoption. He strenuously opposed it, objecting to the restrictions it placed on the slave-trade, which he declared to be the great source of the strength and prosperity of the south; to the clause giving power to congress to regulate commerce; and to the centralization of power in the Federal government, protesting that it would reduce the states to the condition of mere corporations and give a dangerous superiority to the north. The earnestness of his antagonism may be inferred from the closing sentence of one of his speeches: "I wish for no other epitaph than this: ' Here lies one who opposed the Federal constitution, holding it to be fatal to the liberties of his country.' " -- His son, Thomas, merchant, born in Charleston, South Carolina, in 1765; died there, 8 July, 1843, received an academical education, engaged in commercial pursuits, and became one of the chief merchants of his native city. He was chosen a member of the 7th and 8th congresses, and served from 7 December, 1801, till 3 March, 1805.-- Another son, William Jones, statesman, born in Charleston, South Carolina, 7 February, 1782; died at sea, 22 November, 1822, was taken to England when he was seven years of age, and sent for three years to an English grammar-school. On his return to Charleston he was graduated at Charleston college, studied law, and was admitted to the bar in 1804, but he soon abandoned his profession to attend to his plantation. While still a young man he travelled in Europe for mental improvement. It is related that while in London he happened to be left alone at his hotel, which was frequented by none but men of rank and distinction, with William Roscoe, author of the "Life of Leo X.," who was much his senior. The two fell into conversation, and the elder gentleman, leaving the room after a time, met the Duke of Argyll in the street. "I have been spending a most agreeable hour," he said to the duke, "with a young American gentleman, who is the tallest, wisest, and best bred young man I have ever met." "It must have been Mr. Lowndes, of South Carolina," replied the duke. " He is such a man. I know him, and I know no other like him. Return and make his acquaintance." In 1806 Mr. Lowndes was elected to the lower house of the general assembly of South Carolina, retaining his seat until 1810, when he was chosen a member of congress as a Democrat, and re-elected five times successively, serving from 4 November, 1811, till 8 May, 1822, when failing health compelled his resignation. He was an earnest supporter of the war of 1812-'15, and spoke frequently on matters pertaining to the army, the navy, the finances, the national bank. the Missouri compromise, the Spanish treaty, and the tariff. His friends regarded him as a suitable candidate for the presidency, and he was nominated by the legislature of South Carolina. His health having been benefited by a visit to England in 1819, he decided to return to that country, and had embarked with his family from Philadelphia, but did not live to complete the voyage. As a debater he occupied the front rank, in spite of a weakness of voice caused by diseased lungs, while his memory was remarkably retentive. It is said that Henry Clay expressed the opinion that Mr. Lowndes was "the wisest man he had ever known in congress." Note: To emend the account in Appleton's, Rawlins Lowndes was born January 1721 in St. Kitts, British West Indies and died 24 August 1800 in Charleston, South Carolina.                   ____________________________ ____________________________ Rawlins Lowndes, from his remarks in the case of John HARVEY, appears to have been quite sympathetic to the Regulators and thus anticipated the dictum of Thomas P. "Tip" O'Neill that "all politics is local." And, as may certainly be gathered from his remarks to the ratifying convention, in South Carolina, in 1788, Lowndes was a vehement Antifederalist. [See Debates in the Legislature and in Convention of the State of South Carolina on the Adoption of the Federal Constitution.] Lowndes, indeed, was the political forebear of John C. Calhoun. And it seems fitting that both lie interred, in Charleston, in the churchyard of St. Philip's. The image on the right is of St. Philip's, at 146 Church St., as it appeared in 1908. The present structure was built in 1835-38 according to the plan of its architect, Joseph Hyde. The steeple, designed - after the fashion of Christopher Wren and James Gibbs - by Edward Brickell White, was constructed in 1848-50. The gates of the western churchyard are pre-Revolutionary. As would surely have been pleasing to both Lowndes and Calhoun, the church bells were donated to the Confederacy in the War Between the States and, for lethal deployment against such enemies as the Army of the Potomac, were melted into cannon. As is well expressed in the ancient Christian liturgy: Hagios, hagios, hagios kurios sabaoth . . . . ____________________________ ____________________________           3. Charles Greville Montagu: About Charles Greville Montagu, for whom Montagu Street, in Charleston, is named, the following account is adapted from The Montague Millennium:   Lord Charles Greville Montagu was the last royal governor of South Carolina. During the Revolutionary War, he raised a regiment of captured American prisoners to fight for the British against the Spanish. After the Revolutionary War, many of these Americans settled with him in Nova Scotia. Lord Montagu was the second son of Robert Montagu, Duke of Manchester. He, a graduate of Oxford (1759), served in the House of Commons and, in 1765, was married to Elizabeth Balmer. From 1766 to 1773, he was the royal governor of South Carolina. Although wildly popular upon his arrival (the Stamp Act crisis had just ended), he was eventually recalled in disgrace by the British government. It seems he had angered everyone on all sides. Lord Montagu pardoned 75 leaders of the Regulator's Rebellion and worked to fix the border between North and South Carolina border. By the end of his tenure, the South Carolina Assembly had reached a state of direct confrontation with the British government. His loyalties, however, do not appear to have been unequivocal; and he obtained a commission in Jamaica where he would not serve against the Americans. He owned and retained 18,000 acres in South Carolina, and sustained his friendship with such prominent South Carolina families as the Pinckneys, the Manigaults, the Moultries, and the Elliots. Spain entered the war in 1779. Lord Montagu was put in charge of recruiting American prisoners captured by the British to form a corps to capture Nicaragua, thus dividing Spain's American colonies in two. The British invasion of Nicaragua, under the command of Horatio Nelson had begun at the end of the dry season in 1780 and "by November they [the British] were facing extinction." [Robert Scott Davis, Jr., "Lord Montagu's Mission to South Carolina in 1781: American POWs for the King's Service in Jamaica," South Carolina Historical Magazine, 84 (April 1983), pp. 89-109.] American prisoners were kept on prison-ships in New York and Charleston. After the American defeat at Camden, a large number of American prisoners were aboard the prison ships at Charleston. These men were considered by the British the best American troops in the war. Robert Scott Davis, Jr. writes: 'The idea of recruiting American prisoners of war for the King's service did not originate with Montagu . . . . The provincial Volunteers of Ireland had enlisted POWs at Camden . . . . ". . . Montagu boarded the prison ships . . . and began enlisting men. . . . he only succeeded by guaranteeing to the POWs that they would not serve against their former comrades but only against the French and Spanish. He initially enlisted, brought ashore, clothed, . . . , almost 400 recruits . . . . He also enlisted three black pioneers and a black drummer. . . . "In a now famous exchange of correspondence, Lord Montagu even attempted to enlist Gen. Moultrie, offering him command of the regiment . . . . The American general even suggested . . . that Lord Montagu should consider defecting to the rebels!" Lord Montagu sailed to New York with his son and four British officers to recruit on the prison-ships there; but he became an American prisoner when the captain of the Dawes, on which he was sailing, defected to the Americans. An American investigation revealed that the POWs he had recruited had volunteered and American General Nathanael Greene ordered Montagu and his party released. Lord Montagu continued on to New York, and recruited some 500 men from the prison-ships there. Data are available for about 1/3 of the men who served in Montagu's Duke of Cumberland regiment. Thus, Davis: "This data (sic) provides detailed information on the composition of this regiment and some of the reasons Dalling was so pleased with them. Besides being drawn from among the best trained and disciplined of the American army, almost thirty percent . . . were born in England, Scotland, or Ireland . . . . the recruits . . . represented every colony from Georgia to New England, as well as France, Germany, and both the East and West Indies." The Duke of Cumberland regiment was disbanded in 1783; but what happened next is interesting: "Although the former POWs were paid, in addition to their salaries . . . 'a liberal substinence enabling them with comfort to return to their respective homes,' the majority of them petitioned to be allowed to settle with Lord Montagu in Nova Scotia. Additionally, . . . the officers (were) granted half pay traditionally given to extra officers in the regular army, 'as no officers can have greater merit, on account of their zeal and attachment to Government.' The British Ministry granted both requests." Lord Montagu died two months after arriving at Halifax, Nova Scotia, with the first 200 of his men. His Will gave two ships (the privateers Montagu and Industry) to his son and daughter and it specified the commanders of the three divisions of his regiment. His epitaph in the churchyard of St. Paul's, in Halifax, reads:   Here Lye the remains of The Right Honourable LORD CHARLES GREVILLE MONTAGU Second son of Robert Duke of Manchester His Lordship after having served His Majesty with Honour in various Countries And gone through great Fatigues Fell a sacrifice to his public zeal through the Inclemency of a severe winter in Nova Scotia where he was employed to settle a brave Corps of Carolinians whom he had commanded during the late war between Great Britain and Spain. He died much regretted On the Third day of February 1784, aged 45. Vir bonus fortis et Patriae fidelis fuit.* * He was a good man, brave and faithful to his country.   St. Paul's Church (1749 Argyle Street, Halifax, Nova Scotia), where Charles Greville Montagu was interred, is the oldest Protestant church in Canada. It was constructed in 1750 and has been called the "Mother Temple of the Church of England in Canada." A curious feature of St. Paul's is the third window in the upper gallery. The Halifax explosion of 6 December 1918 shattered this window. To this day, its shattered remains show the silhouette of a man's head and shoulders, clearly visible to passersby. 4. and and: This, in the manuscript, is an instance of dittography. 5. that . . . that: The second "that" is redundant. 6. that I was a stranger in this Country: Gordon, thus far, shows himself to have argued - as a matter of principle - that justice is to be obtained through due process of law. He now shows that Lowndes first responded to him with the sophistical device of argumentum ad hominem, abusive. 7. to find very Small Damages: Gordon, at this point, represents Lowndes as arguing before the jury that the application of law should be tailored to politics. Thus Justice, as Lowndes would have her, ought not to be blind to the light of politics; and legal courts, as he apparently would have them, should be political courts. It will be understood that Lowndes was exercising a fine disregard for the classical distinction between forensic and political rhetoric:   Aristotle, Rhetoric 1.3:   The political orator is concerned with the future: it is about things to be done hereafter that he advises, for or against. The party in a case at law is concerned with the past; one man accuses the other, and the other defends himself, with reference to things already done. . . . The political orator aims at establishing the expediency or the harmfulness of a proposed course of action; if he urges its acceptance, he does so on the ground that it will do good; if he urges its rejection, he does so on the ground that it will do harm; and all other points, such as whether the proposal is just or unjust, honourable or dishonourable, he brings in as subsidiary and relative to this main consideration. Parties in a law–case aim at establishing the justice or injustice of some action, and they too bring in all other points as subsidiary and relative to this one. Gordon, as it seems, was a "strict constructionist" with regard to the British constitution. Lowndes was the "judicial activist." The trouble with political courts is exemplified, of course, by what passed for legal procedure in Germany under National Socialism and in the Soviet Union under Bolshevik governance. Although, in the United States, the federal Supreme Court, in the case of Brown et al. v. Board of Education of Topeka, Shawnee County, Kansas et al. (17 May 1954), reached a decision consistent with the Anglo-American tradition of common law, the juridical argument in support of its decision - as this was delivered by Chief Justice Earl Warren - was so politically tinctured as to establish a precedent dangerous to the rule, under law, of equal justice for all persons. Warren's consequentialism, especially by comparison to the tightly-principled reasoning of Lord Mansfield in the case of James Somerset v. Charles Stewart (King's Bench, 22 June 1772), by which slavery was banished from Great Britain, makes the Brown decision seem arbitrary. 8. deserved not the Countenance of either the Court or the Jury: That David Robinson, the defendant, "did not so well deserve" the reputation of a "fair & honest Character" was admitted by a witness under questioning by Lowndes and, seemingly, under oath. In rebuttal of the witness, but certainly not under oath, Lowndes argued to the jury that John HARVEY, the plaintiff, was of such a character as not to deserve the impartial equity of law. Lowndes, having abused Gordon with an argumentum ad hominem, did the same to HARVEY. Lowndes, in effect, was compensating the defendant for his lack of competent counsel, a circumstance which was not the fault of the plaintiff. 9. least: recte lest. 10. their: recte there. 11. an Equal right to Sit where he was: Lowndes argued that what justified his comments to the jury was his authority to make comments. This, of course, was a self-serving use of argumentum ad verecundiam. 12. of delivering his opinion: That is, of speaking in place of Lowndes. 13. <he>: That is, Lowndes. 14. <he> called for the Book: That is, he called for the Bible on which to be sworn. 15. as any other of the Kings Subjects: Justice Edward Savage, though explaining to the jury that John HARVEY had previously been convicted of a capital offense for which he had been burnt in the hand, agreed with Gordon that the reputation of the plaintiff was of no pertinence to the case presently before the court and that it did not affect any claim made by the plaintiff to equal justice under law. It is not known for what crime John HARVEY had been convicted and sentenced but, in the colonial province of South Carolina, about 165 infractions of law were defined as capital crimes. In this regard, the statutes of South Carolina emulated those of England. 16. Council: recte counsel. 17. St.: Servant 18. Cloud: recte crowd. 19. for: The preposition lacks an object. Lowndes perhaps means to say that Gordon was intending to remove him from the bench. 20. His punishment . . . <is> very immaterial to the point in Issue between the Cheif Justice and myself: Since it was Lowndes himself who asserted that the plaintiff, John HARVEY, was only getting so much as his character deserved, the "punishment" seems not to be so very immaterial to the point in issue. 21. a great doubt and suspicion of their Testimony: Lowndes means that, in his opinion, the witnesses for the plaintiff were not credible. 22. their sentiments were not very different from mine: As if the jury had been uninfluenced by him, Lowndes makes use of its verdict in seeming proof of his juridical expertise. 23. as he was but Lately come into the province: Lowndes, advertising himself as a parochial realist, makes invidious comparison of himself to Gordon, portrayed here as an arriviste nouveau. The distinction between the realistic and the naïve, for Lowndes, supersedes the distinction between justice and injustice. This is quite Machiavellian and, not wishing to be politically mistaken, Lowndes was quite willing to be at risk of Gordon's displeasure. 24. Council: recte counsel. 25. gangs of the vilest bandittie: Lowndes, of course, was insinuating that John HARVEY is one of "the vilest bandittie." Banditti, of course, is Italian for bandits. 26. vail: veil. 27. the Defendant was a poor man but had a good Character: Since, as it appears, the defendant furnished no testimony, the only evidence in favour of the defendant's character must have come from Lowndes himself. 28. the Characters of the partys were a very proper Subject for a Jurys investigation: What Lowndes means is that the jury should be influenced by such judgements of character as are consistent with his thesis that it is good for good people to do bad things to bad people. Any goodness, accordingly, may excuse any evil. This is an exceedingly ancient sophism which instantiates the fundamental law of Realpolitik, namely, that justice is the advantage of the stronger. 29. the plaintiff stood in no favourable point of view in that Respect: It is certainly true that, in the Anglo-American tradition of common law, that - for the assessment of damages - the jury may take account of judgements of character. But the point at issue, as Lowndes well understood, is whether or not it may be the duty of a magistrate to play an adversarial role in a trial over which he himself is presiding. 30. as the Cheif Justice has it: Here, Lowndes is saying that, because John HARVEY is only a bad man, not a very bad man, he did not tell the jury that HARVEY "deserved not the Countenance of either the Court or Jury." In other words, Lowndes is calling Gordon a liar; and he gives the appearance of deferring to Montagu to judge whether Gordon may even be a worse man than HARVEY. 31. may very Justly be attributed to that Cause: Lowndes admits to having lost his temper in court. But Lowndes, as could be expected, says that it was all Gordon's fault. Because Gordon interrupted, Lowndes was "unwarily betrayed into" a state of righteous wrath. 32. I cannot recollect any Expressions I regret: As Edith Piaf used to warble, "Je ne regrette rien." 33.the Cheif Justices high notions of preeminence: Thus Demos jeers at Aristos. 34. an altercation too illiberal for him to Engage in: This is in direct response to Gordon's saying that "he seemed inclined to Enter into an altercation too illiberal for me to engage in." What Gordon meant is that Lowndes seemed ungentlemanly - and thus unsporting - and that he, Gordon, wished not to condescend to Lowndes's display of juridical bad manners. 35. what part of my behaviour indicated such an inclination: Lowndes is disingenuous. He has already described himself as having retorted "the Cheif Justices words in a very strange, improper, and unconstitutionable manner." If that was so, as Lowndes himself says it was, then Gordon was correct in judging Lowndes's deportment as inconsistent with liberality. But, as Lowndes would have it, it was Gordon who was blameworthy. 36. before me Capitally Convicted & burnt in the hand: Lowndes, evidently, was the presiding magistrate at the trial in which John HARVEY was convicted of a felony. 37. a Judge in his Scarlet Robes: It is good to know that, in the eighteenth century, the highest magistrates in the British province of South Carolina were attired in scarlet. The topic of judicial robing is of much interest to historians who are concerned with ceremonial vestments and, especially, with the garments of legal authority. Thus, the following scholarly memorandum from His Honour, S. James Clarkson:   Supreme Court Historical Society Yearbook, 1980: The Judicial Robe   S. James Clarkson The wearing of a black robe by judges was a custom utilized more by the judiciary in the United States than in other countries. Traditionally, black signifies death and mourning. It had never occurred to me that the research I had conducted would serve me in such good stead when I was elected to the judiciary. I chose the color red for, as I discovered in my research, red was the color most widely used by jurists in England and Canada as well as France. It was also rooted in the history of the English judiciary, from whence comes most precedent for the law as it is practiced in the United States. Our adoption of the English legal system without its traditional judicial garb poses the mystery. The question, "Why do you wear red?" was therefore replaced by the question "Why do judges wear black?" Sir William Dugdale, in his chapter concerning the personal attire of judges, said "That peculiar and decent vestments have, from great antiquity, been used in religious services, we have the authority of God's sacred precept to Moses, 'Thou shalt make holy raiments of Aaron and his sons, that are to minister unto me, that they may be for glory and beauty.' In this light and flippant age (18th Century), there are men irreverent enough to smile at the habiliments which our judges wear in court, for the glory of God and the seemly embellishment of their own natural beauty."[1] There is considerable difficulty in determining the origin and history of the use of judicial robes and their color. There is consensus; however, that English judges of the present day wear robes worn by their predecessors. Some judges wore different vestments varying with their particular offices and whether or not it was summer or winter. These robes were of fur and silk and were embellished with collars and cuffs of various shapes and forms. In the eleventh year of Richard II, a distinction was made between the costumes of the chiefs of the King's Bench and Common Pleas and their assistant justices.[2] At that time each of the assistant justices wore green robes in the summer; and in the twenty-second year of Henry VI, Chief Baron John Fray received "for his winter robe against Christmas, 'x' ells of violet in grain; trimmed with various minever." The same judge received "for his summer robe, against Whitsuntide, ten ells of green cloth long, and half of a piece of green tartarin." The three other Barons of the Exchequer at the same time had "for the like summer robes, each of them ten ells of violet likewise trimmed in minever fur." The various hues and colors of the robes and those used by the judiciary and the lawyers indicate such a diversity as to cause John Cordy Jeaffreson to write in part of his book entitled Costume and Toilet, "These notes are sufficient to prove that judicial costume varied with the fashion of the day or the whim of the sovereign in the 14th and 15th Centuries."[3] And, as an interesting comment, he cites that . . . "In the time of Charles I, questions relating to the attire of the common law judges were involved in so much doubt, and surrounded with so many contradictory precedents and traditions, that the judges resolved to simplify matters by conference and unanimous action." The result of their deliberation was a decree dated June 6, 1635.[4] It is the only decree I know of, other than one proposed by the new Michigan Court Rules, determining the type and color of robes to be used by the judiciary. The decree of June 6, 1635 provided the various colors and kinds of robes to be used for the respective "Holydayes" and terms of court. Scarlet, of course, was the favorite color, trimmed in various kinds of furs and other adorning trims. Violet was another favorite color, trimmed with black and faced with taffeta. Other trim commonly used with the various colors was velvet. With the advent of the "Sergeants-at-Law," wherefrom the judges of the King's Bench and the Common Pleas and the Exchequer could only be chosen, the fashion of the bar was similar to the formal dress of the judiciary, and in Nicholas Sellers' article entitled "Sergeants at-Law," printed in the Pennsylvania Bar Association Quarterly, June, 1965, it is stated as follows: "Lastly, the sergeants-at-law were known, as we have said before, as the Order of the Coif, and could be deemed in the nature of a very select fraternity. They called one another 'Brother'; even from the bench this fraternal form of address continued, since the judges were of course still sergeants. ('Bardell and Pickwick,' called the clerk of the court, 'I am for the plaintiff, my Lord,' said Mr. Sergeant Buzfuz. 'Who is with you, Brother Buzfuz?' inquired the Judge.) The Coif was originally a form of skullcap of white silk worn by the sergeants; when wigs came in fashion, a patch of white was still fastened on top to indicate the dignity of sergeant. They were entitled to wear scarlet robes (purple for saints' days) and did so on state occasions, although usually adhering to the traditional black gown which had come in as mourning dress at the funeral of Queen Anne in 1714 and never changed since."[5] This seems to give support to the proposition that in 1714, when Queen Anne died, the judges wore black mourning garb according to the wishes of the King, and have worn it ever since. "It is a little known fact that for over 250 years, judges have been mourning the demise of the Queen of England! Chief Baron Pollock remarked that 'the Bar went into mourning at the death of Queen Anne and never came out again.' It is the red, not the black, robe which is rooted in antiquity."[6] Parenthetically, it should be noted that the sergeants-at-law were appointed by the Crown, and that the Order of the Coif was in existence as far back as 1117 A. D. In a letter to me from Ian A. R. Tofts, dated February 2, 1976, however, he disagrees, as here stated:[7] With regard to your main question concerning the death of Queen Anne it is not known for certain whether or not it was at that time that 'Queen's Counsel' commenced wearing a mourning costume; indeed it is very unlikely as you will see below. The Costume as a whole, Court Suit and Gown, is said to date from the funeral of Queen Mary II in 1694, being reputedly the Official Court Mourning Dress worn on that solemn occasion. Some say it was at the funeral of Queen Anne and indeed reference is made to the celebrated remark of Sir Frederick Pollock, a 19th Century Judge, that the Bench and Bar have been in mourning and never came out. However, it would seem, and with the deepest of respect for the eminent Judge, he was sadly mistaken. I for my part feel that the Funeral of Queen Mary II in 1694 is more feasible for a number of reasons. In the Michaelmas Law Term of 1697 (some considerable time before the death of Queen Anne) Chief Justice Holt of the then Kings Bench Division (Queen Anne was not yet in fact on the Throne) told Banisters 'I will hear you henceforward only if you appear in your proper gowns and not in mourning one." This mourning garb however only appears to have been worn to Queen's Counsel. It may also have been worn by Junior Counsel but there is no apparent evidence whatsoever to support Judge Pollock's remarks that the whole of the Judiciary wore mourning garb. Certainly the Judges did not appear to have worn any mourning garb at all–-pictures or paintings of the period would seem to support this. The Queen's Counsel mourning garb worn on formal legal occasions consists of a black velvet coat with tails, knee breeches, lace stock and cuffs, black silk gown, white gloves and a full bottomed wig. At Royal Courts, State Banquets and other similar occasions they appear simply in Velvet Court Dress with sword and crush hat. At Levees their dress is black cloth Court Suit, lace stock and cuffs, black silk gown and full bottomed wig. When pleading in Court they wear a Court Tail Coat of cloth, trousers (instead of knee breeches) black silk gown and Bob Wig and bands similar to those of Junior Counsel. When appearing in the House of Lords they wear the full bottomed wig; frequently the mourning gown of stuff is worn in court, strictly incorrectly. 'The Mourning Dress' consisted of a hemmed stock and cuffs with mourning bands (lawn with a thin stripe down the middle) and (when not wearing a gown) a crepe band on the left arm. The gown worn on such occasions is of stuff material instead of silk, when pleading in court, white cuffs of muslin or linen known as 'Weepers,' are worn over the sleeves of the coat and mourning bands. The Queen's Counsel Gown differs from that of the Junior Counsel. As well as being normally of silk, it is practically sleeveless, has a square cut yoke or rudimentary hood at the back and is without the traditional flaps of cloth attached to the Junior Banister's gown. Whatever the reason, it is established beyond a reasonable doubt that whether the choice of the robe be scarlet, purple, or green, that the use of the black robe was primarily a symbol of mourning and was used in respect for the monarchy at the time of death. Mr. Tofts, in his letter of February 2, 1976 from Sunbury on Thames, Middlesex, England, answers my letter regarding the question of the use of the red or scarlet robes by stating as follows:[8] Judges of the High Court are now invariably knighted on appointment. This honor appears to go back as far as the reign of Edward III (1327-1377) when Judges were made 'Knights Banneret,' a rank of office which became extinct in the 17th Century. While in office Judges are entitled to the prefix 'The Honourable,' being referred to as 'The Honourable Sir, So and So, Knight, one of the Justices of Her Majesty's High Court of Justice.' Since the 18th Century they have been addressed in Court as 'My Lord,' and 'Your Lordship.' In earlier times, from the 14th Century, 'Sir,' was the customary form. High Court Judges are informally addressed as 'Mr. Justice So and So,' and in Law Reports and other Legal writings as 'So and So; J.,' which is also the form of their official signature. You will most probably be interested to learn that the dress of the English Judge has not changed, in essentials, since the 15th Century. This of course adds weight to the belief that the judges did not in fact wear a mourning dress as did the Queen's Counsel when Queen Anne died or for that matter when Queen Mary II died. The Official wardrobe of the High Court Judge comprises, and one must remember that little has changed since the 15th Century, as follows: The Judicial Robe, made of cloth, is not unlike a cassock in shape, with sleeves, a straight front fastening and a high neck without lapels. The deep cuffs are of white fur or of silk and the front edges are trimmed with the same material for most of their length. Robes of this type were worn by the Sergeants, and at the period when the Order of the Coif began there was little distinction between lay and clerical garments. Originally the Robes were partly lined with fur, at first lambskin and later on Miniver (now called Ermine) early 16th Century portraits show the lining barely visible at the end of the sleeve. The Robe at this period was (and for time after) much fuller than at present, more like a full cub Alb than a cassock. The lining gave place to a mere facing, with deep cuffs as if turned back to display the fur or silk and a similar trimming at the front edges. All High Court Judges have a full dress or State Robe of scarlet trimmed with ermine at the cuffs and front edges, and also a gown, not robe, but of the pattern worn by Queen's Counsel (referred to above) of black silk, comparatively sleeveless. In addition, Queen's Bench Division Judges have a black Robe, trimmed with ermine, one of scarlet trimmed with slate coloured silk and one of violet trimmed with salmon coloured silk. The two last are worn m summer to correspond with the scarlet and ermine and black and ermine which are worn in winter. It is interesting to note that scarlet was widely used as a judicial colour in Medieval Europe. Inderwick ('The Kings Peace,' 1895) says that the Venetian Magistrates who formed the Council of Ten wore Scarlet and so, apparently, did the Florentine Judges who tried Savonarola in 1495. The same writer adds that Scarlet was a colour used by the Higher Order of the Clergy from whom (at that time) Judges would be drawn. However, I view that with some reservation and feel that this was only true of Cardinals, who one sees always in Scarlet. There are in fact four illuminations, now in the Inner Temple Library, of the time of Henry VI which show the Court of Chancery and the Three Common Law Courts. The Judges in all these Courts are portrayed in Scarlet Robes lined with fur. In early times, however, there was considerable variation in colour. The violet Robe now worn is said to date from Edward I (1272-1307). Green cloth for Common Law Judges is seen during Richard II's reign but only as a summer Robe. In Henry VI's reign the Chief Baron is found receiving violet cloth for a Winter Robe, and Green for Summer, while at the same time other Barons had Violet for Summer. The remainder of the Judges Regalia which I will not bother to go into the history of at the present moment (but will be pleased to do so if you require further information) consists of the Scarf, (or stole), the Casting Hood, The Girdle (or Sash), The Hood, The Bands, The Court Suits, The Wigs, The Black Cap, The Tri-Cornered Hat (Tricorn) and the White Kid Gloves. . . . There is also a great deal of tradition relating to the various Courts and Law Sittings and the Regalia changes to suit the occasion. In this country judges vary greatly in order of seniority and, of course, their regalia changes according to their position. E.G., The Lord Chief Justice wears, on the installation of a new Lord Chancellor, Full Bottomed Wig, Scarlet and Ermine Robes. The Master of the Rolls on the same occasion wears his Black and Gold State Robe. The Lord Chancellor, when he appears, wears also a Black and Gold State Robe. These State Robes date from the 16th Century." The best collection of portraits and pictures of early judges' attire in the United States can be found in the halls and classrooms of Harvard Law School. In continuing this research I spent many hours viewing portraits and pictures of the different judges depicting the garb and costumes of the judiciary. It has been generally accepted that I was the first judge to resume wearing the red robe here in the United States, and soon thereafter other judges discarded the use of the black robe. Endnotes A Book About Lawyers, by John Cordy Jeaffreson, Vol. 1, 1867, p. 361. Ibid., p. 362. Ibid., p. 363. Ibid., p. 363. Case and Comment, Vol. 70, No. 6, Nov-Dec 1965, p. 18 Ibid., p. 20. Ian A. R. Tofts, Sunbury on Thames, Middlesex, England, letter of 2-2-76. Loc. cit., n. 7 supra. At the time he published this article, Samuel James Clarkson (born in Detroit, Wayne County, Michigan on 9 February 1925), an Episcopalian and Freemason, was judge of the Michigan District Court, No. 46. He now (2003) appears to be in semi-retirement in Naples, Florida and Port Carling, Ontario. He has long been an advocate of "land value taxation," an updated version of the "single tax" promoted by Henry George (2 September 1839, Philadelphia, Pennsylvania - 29 October 1897, New York City) with his publication of Progress and Poverty (1879). Progress and Poverty was the American successor to François Quesnay's (1694 - 1774) Tableau économique (1759), the founding document of 18th-century French physiocracy, now a most curious thesis in political economy. George's "single-tax" was the equivalent of Quesnay's l'impôt unique. It is good to know that, in this era of postmodernist politics and economic 'globalisation,' Henry George still commands a following. 38. a law absurd and Inhumane: Because law is not the same as morality, Sir William Gascoigne was simply stating the fact that it is possible for a person to be guilty in law for a crime of which he is morally innocent. Lowndes, therefore, identifies Gascoigne with the ideology of legalism. Students of literature will recall that the entanglement of moral innocence with legal guilt is, in fact, the topic of Herman Melville's (1819 - 1891) Billy Budd, the novella which was not published until 1924. Sir William Gascoigne was a figure of considerable note in the history of English law:   Encyclopedia Britannica (1911):       GASCOIGNE, SIR WILLIAM (c. 1350 — 1419), chief justice of England in the reign of Henry IV. Both history and tradition testify to the fact that he was one of the great lawyers who in times of doubt and danger have asserted the principle that the head of the state is subject to law, and that the traditional practice of public officers, or the expressed voice of the nation in parliament, and not the will of the monarch or any part of the legislature, must guide the tribunals of the country. He was a descendant of an ancient Yorkshire family. The date of his birth is uncertain, but it appears from the year-books that he practised as an advocate in the reigns of Edward III. and Richard II, On the banishment of Henry of Lancaster Gascoigne was appointed one of his attorneys, and soon after Henry’s accession to the throne was made chief justice of the court of king’s bench. After the suppression of the rising in the north in 1405, Henry eagerly’ pressed the chief justice to pronounce sentence upon Scrope, the archbishop of York, and the earl marshal Thomas Mowbray, who had been implicated in the revolt. This he absolutely refused to do, asserting the right of the prisoners to be tried by their peers. Although both were afterwards executed, the chief justice had no part in the transaction. It has been very much doubted, however, whether Gascoigne could have displayed such independence of action without prompt punishment or removal from office following. The oft-told tale of his committing the prince of Wales to prison must also be regarded as unauthentic, though it is both picturesque and characteristic. The judge had directed the punishment of one of the prince’s riotous companions, and the prince, who was present and enraged at the sentence, struck or grossly insulted the judge. Gascoigne immediately committed him to prison, using firm and forcible language, which brought him to a more reasonable mood, and secured his voluntary obedience to the sentence. Theking is said to have approved of the act, but there appears to be good ground for the supposition that Gascoigne was removed from his post or resigned soon after the accession of Henry V. He died in 1419, and was buried in the parish church of Harewood in Yorkshire. Some biographies of the judge have stated that he died in 1412, but this is clearly disproved by Foss in his Lives of the Judges; and although it is clear that Gascoigne did not hold office long under Henry V, it is not absolutely impossible that the scene in the fifth act of the second part of Shakespeare’s Henry IV. has some historical basis, and that the judge’s resignation was voluntary. Those who are not familiar with the Anglo-American history of jusrisprudence will remember Gascoigne as Shakespeare portrayed him, the Lord Chief Justice in Henry IV, Part II 5.2:   From: William Shakespeare (1564 – 1616). The Oxford Shakespeare (1914): The Second Part of King Henry the Fourth Act V. Scene II. Westminster. An Apartment in the Palace.      Enter WARWICK and the LORD CHIEF JUSTICE.     War.  How now, my Lord Chief Justice! whither away?     Ch. Just.  How doth the king?    4   War.  Exceeding well: his cares are now all ended.     Ch. Just.  I hope not dead.     War.        He’s walk’d the way of nature;   And to our purposes he lives no more.    8   Ch. Just.  I would his majesty had call’d me with him:   The service that I truly did his life   Hath left me open to all injuries.     War.  Indeed I think the young king loves you not.   12   Ch. Just.  I know he doth not, and do arm myself,   To welcome the condition of the time;   Which cannot look more hideously upon me   Than I have drawn it in my fantasy.   16    Enter LANCASTER, CLARENCE, GLOUCESTER, WESTMORELAND and Others.     War.  Here come the heavy issue of dead Harry:   O! that the living Harry had the temper   Of him, the worst of these three gentlemen.   20 How many nobles then should hold their places,   That must strike sail to spirits of vile sort!     Ch. Just.  O God! I fear all will be overturn’d.     Lanc.  Good morrow, cousin Warwick, good morrow.   24   Glo.  Good morrow, cousin.   Cla.     Lanc.  We meet like men that had forgot to speak.     War.  We do remember; but our argument   28 Is all too heavy to admit much talk.     Lanc.  Well, peace be with him that hath made us heavy!     Ch. Just.  Peace be with us, lest we be heavier!     Glo.  O! good my lord, you have lost a friend indeed;   32 And I dare swear you borrow not that face   Of seeming sorrow; it is sure your own.     Lanc.  Though no man be assur’d what grace to find,   You stand in coldest expectation.   36 I am the sorrier; would ’twere otherwise.     Cla.  Well, you must now speak Sir John Falstaff fair,   Which swims against your stream of quality.     Ch. Just.  Sweet princes, what I did, I did in honour,   40 Led by the impartial conduct of my soul;   And never shall you see that I will beg   A ragged and forestall’d remission.   If truth and upright innocency fail me,   44 I’ll to the king my master that is dead,   And tell him who hath sent me after him.     War.  Here comes the prince.      Enter KING HENRY THE FIFTH, attended.   48   Ch. Just.  Good morrow, and God save your majesty!     K. Hen. V.  This new and gorgeous garment, majesty,   Sits not so easy on me as you think.   Brothers, you mix your sadness with some fear:   52 This is the English, not the Turkish court;   Not Amurath an Amurath succeeds,   But Harry Harry. Yet be sad, good brothers,   For, to speak truth, it very well becomes you:   56 Sorrow so royally in you appears   That I will deeply put the fashion on   And wear it in my heart. Why then, be sad;   But entertain no more of it, good brothers,   60 Than a joint burden laid upon us all.   For me, by heaven, I bid you be assur’d,   I’ll be your father and your brother too;   Let me but bear your love, I’ll bear your cares:   64 Yet weep that Harry’s dead, and so will I;   But Harry lives that shall convert those tears   By number into hours of happiness.   Lanc., &c. We hope no other from your majesty.   68   K. Hen. V.  You all look strangely on me: [To the CHIEF JUSTICE.] and you most;   You are, I think, assur’d I love you not.     Ch. Just.  I am assur’d, if I be measur’d rightly,   Your majesty hath no just cause to hate me.   72   K. Hen. V.  No!   How might a prince of my great hopes forget   So great indignities you laid upon me?   What! rate, rebuke, and roughly send to prison   76 The immediate heir of England! Was this easy?   May this be wash’d in Lethe, and forgotten?     Ch. Just.  I then did use the person of your father;   The image of his power lay then in me:   80 And, in the administration of his law,   Whiles I was busy for the commonwealth,   Your highness pleased to forget my place,   The majesty and power of law and justice,   84 The image of the king whom I presented,   And struck me in my very seat of judgment;   Whereon, as an offender to your father,   I gave bold way to my authority,   88 And did commit you. If the deed were ill,   Be you contented, wearing now the garland,   To have a son set your decrees at nought,   To pluck down justice from your awful bench,   92 To trip the course of law, and blunt the sword   That guards the peace and safety of your person:   Nay, more, to spurn at your most royal image   And mock your workings in a second body.   96 Question your royal thoughts, make the case yours;   Be now the father and propose a son,   Hear your own dignity so much profan’d,   See your most dreadful laws so loosely slighted,  100 Behold yourself so by a son disdain’d;   And then imagine me taking your part,   And in your power soft silencing your son:   After this cold considerance, sentence me; 104 And, as you are a king, speak in your state   What I have done that misbecame my place,   My person, or my liege’s sov’reignty.     K. Hen. V.  You are right, justice; and you weigh this well; 108 Therefore still bear the balance and the sword:   And I do wish your honours may increase   Till you do live to see a son of mine   Offend you and obey you, as I did.  112 So shall I live to speak my father’s words:   ‘Happy am I, that have a man so bold   That dares do justice on my proper son;   And not less happy, having such a son,  116 That would deliver up his greatness so   Into the hands of justice.’ You did commit me:   For which, I do commit into your hand   The unstained sword that you have us’d to bear;  120 With this remembrance, that you use the same   With the like bold, just, and impartial spirit   As you have done ’gainst me. There is my hand:   You shall be as a father to my youth;  124 My voice shall sound as you do prompt mine ear,   And I will stoop and humble my intents   To your well-practis’d wise directions.   And, princes all, believe me, I beseech you;  128 My father is gone wild into his grave,   For in his tomb lie my affections;   And with his spirit sadly I survive,   To mock the expectation of the world,  132 To frustrate prophecies, and to raze out   Rotten opinion, who hath writ me down   After my seeming. The tide of blood in me   Hath proudly flow’d in vanity till now:  136 Now doth it turn and ebb back to the sea,   Where it shall mingle with the state of floods   And flow henceforth in formal majesty.   Now call we our high court of parliament;  140 And let us choose such limbs of noble counsel,   That the great body of our state may go   In equal rank with the best govern’d nation;   That war or peace, or both at once, may be  144 As things acquainted and familiar to us;   In which you, father, shall have foremost hand.   Our coronation done, we will accite,   As I before remember’d, all our state: 148 And, God consigning to my good intents,   No prince nor peer shall have just cause to say,   God shorten Harry’s happy life one day.  [Exeunt.] There is no exact knowledge of Sir William Gascoigne's date of birth. But, in 1397, Sir John and Elizabeth Depeden granted the manor of Cottingley, in West Yorkshire, to him, to his brothers Nicholas and John, and to John Amyas and Robert Gallesthorpe. Sir William Gascoigne, who died 17 December 1419, was interred at All Saints, the parish church of Harewood, about six miles north of Leeds. There, his monumental image, in alabaster, shows a fine example of judicial robing: Monumental effigies of Sir William Gascoigne, Lord Chief Justice and his wife Elizabeth Mowbray [From Sir William Gascoigne's Fellowship] Sir William Gascoigne   Harewood, All Saints The Churches Conservation Trust   "All Saints is hidden away within the park of Harewood House. A 15th century church much restored by Sir George Gilbert Scott in 1862–63, its rather severe interior houses a spectacular and fascinating collection of alabaster tombs, dating from 1419 to 1510, commemorating the owners of Harewood and of a nearby estate, Gawthorpe. "Six pairs of effigies, intricately carved, and virtually without rival in England, provide a unique history of mediaeval armour and costume, and of the development of the art of alabaster carving for which England was famed throughout Europe. "The earliest, to Judge William Gascoigne, shows him in the robes of Lord Chief Justice, with a finely carved purse on one side and a dagger on the other, while his wife wears a square head-dress and rests her feet on a little dog. Later tombs show greater sophistication in carving, and each clearly reflects the fashions of the day in the men’s armour and the women’s dresses, jewellery and headdresses. The latest tomb, to Edward Redman and his wife, is probably the finest, and the carving of the face may well be a true portrait of the man, rare in mediaeval times. At his feet is a tiny but perfectly carved figure of a bedesman who is shown saying prayers for the soul of the departed." 39. the Gentleman who then presided in Government: William Bull II (1710 - 1791) was, from 1764 to 1766, Montagu's immediate predecessor. 40. minesters: ministers. 41. Some Examples of punishment would now have been wanting: This, perhaps should be read as "Some Examples of punishment would not have been wanting . . . ." 42. I was pusillanimous or passive.: This, very likely, should be read as "I was not pusillanimous or passive." 43. minestry: ministry. 44. principals: principles. 45. For tho': although. 46. excluded from the Benefit of Clergy: Concerning the "benefit of clergy" and the punishment of burning in the hand, Sir William Blackstone is the authority about the state of law in the second half of the 18th century. That John HARVEY was accorded the benefit of clergy does not necessarily mean that he was a man of the cloth.   Sir William Blackstone (10 July 1723, London, England - 14 February 1780, London, England): Commentaries on the Laws of England (1765 - 1769): BOOK THE FOURTH: OF PUBLIC WRONGS, CHAPTER THE TWENTY EIGHTH: OF THE BENEFIT OF CLERGY. [358] AFTER trial and conviction, the judgment of the court regularly follows, unless suspended or arrested by some intervening circumstance; of which the principal is the benefit of clergy: a title of no small curiosity as well as use; and concerning which I shall therefore enquire, 1. Into its original, and the various mutations which this privilege of clergy has sustained. 2. To what persons it is to be allowed at this day. 3. In what cases. 4. The consequences of allowing it. I. CLERGY, the privilegium clericale, or in common speech the benefit of clergy, had its original from the pious regard paid by christian princes to the church in its infant state; and the ill use which the popish ecclesiastics soon made of that pious regard. The exemptions, which they granted to the church, were principally of two kinds: 1. Exemption of places, consecrated to religious duties, from criminal arrests, which was the foundation of sanctuaries: 2. Exemption of the persons of clergymen from criminal process before the secular judge in a few particular cases, which was the true original and meaning of the privilegium clericale. [359] BUT the clergy, encreasing in wealth, power, honour, number, and interest, began soon to set up for themselves: and that which they obtained by the favour of the civil government, they now claimed as their inherent right; and as a right of the highest nature, indefeasible, and jure divino.a By their canons therefore and constitutions they endeavoured at, and where they met with easy princes obtained, a vast extension of these exemptions: as well in regard to the crimes themselves, of which the life became quite universalb; as in regard to the persons exempted, among whom were at length comprehended not only every little subordinate officer belonging to the church or clergy, but even many that were totally laymen. IN England however, although the usurpations of the pope were very many and grievous, till Henry the eighth entirely exterminated his supremacy, yet a total exemption of the clergy from secular jurisdiction could never be thoroughly effected, though often endeavoured by the clergy:c and therefore, though the antient privilegium clericale was in some capital cases, yet it was not universally, allowed. And in those particular cases, the use was for the bishop or ordinary to demand his clerks to be remitted out of the king's courts, as soon as they were indicted: concerning the allowance of which demand there was for many years a great uncertainty:d till at length it was finally settled in the reign of Henry the sixth, that the prisoner should first be arraigned; and might either then claim his benefit of clergy, by way of declinatory plea; or, after conviction, by way of arresting judgment. This latter way is most usually practiced, as it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury; and also as it is more advantageous to the prisoner himself, who may   a The principal argument, upon which they founded this exemption, was that text of scripture; “touch not mine anointed, and do my prophets no harm,” (Keilw. 181.) b See Vol. III. pag. 62. c Keilw. 180. d 2 Hal. P. C. 377. [360] possibly be acquitted, and so need not the benefit of his clergy at all. ORIGINALLY the law was held, that no man should be admitted to the privilege of clergy, but such as had the habitum et tonsuram clericalem.e But in process of time a much wider and more comprehensive criterion was established: every one that could read (a mark of great learning in those days of ignorance and her sister, superstition) being accounted a clerk or clericus, and allowed the benefit of clerkship, though neither initiated in holy orders, nor trimmed with the clerical tonsure. But when learning, by means of the invention of printing, and other concurrent causes, began to be more generally disseminated than formerly; and reading was no longer a competent proof of clerkship, or being in holy orders; it was found that as many laymen as divines were admitted to the privilegium clericale: and therefore by statute 4 Hen. VII. c. 13. a distinction was once more drawn between mere lay scholars, and clerks that were really in orders. And though it was thought reasonable still to mitigate the severity of the law with regard to the former, yet they were not put upon the same footing with actual clergy; being subjected to a slight degree of punishment, and not allowed to claim the clerical privilege more than once. Accordingly the statute directs, that no person, once admitted to the benefit of clergy, shall be admitted thereto a second time, unless he produces his orders: and, in order to distinguish their persons, all laymen who are allowed this privilege shall be burnt with a hot iron in the brawn of the left thumb. This distinction between learned lawmen, and real clerks in orders, was abolished for a time by the statutes 28 Hen. VIII. c. 1, and 32 Hen. VIII. c. 3. but is heldf to have been virtually restored by statute 1 Edw. VI. c. 12. which statute also enacts that lords of parliament, and peers of the realm, may have the benefit of their peerage, equivalent to that of clergy, for the first offence, (although they cannot read, and   e 2 Hal. P. C. 372. M. Paris. A. D. 1259. See Vol. I. pag. 24. f Hob. 294. [361] without being burnt in the hand) for all offences then clergyable to commoners, and also for the crimes of housebreaking, highway robbey, horse-stealing, and robbing of churches. AFTER this burning, the laity and, before it, the real clergy were discharged from the sentence of the law in the king's courts, and delivered over to the ordinary, to be dealt with according to the ecclesiastical canons. Whereupon the ordinary, not satisfied with the proofs adduced in the profane secular court, set himself formally to work to make a purgation of the offender by a new canonical trial; although he had been previously convicted by his country, or perhaps by his own confession. This trial was held before the bishop in person, or his deputy; and by a jury of twelve clerks: and there, first, the party himself was required to make oath of his own innocence; next, there was to be the oath of twelve compurgators, who swore they believed he spoke the truth; then, witnesses were to be examined upon oath, but on behalf of the prisoner only and, lastly, the jury were to bring in their verdict upon oath, which usually acquitted the prisoner: otherwise, if a clerk, he was degraded, or put to penance.g A learned judge, in the beginning of the last century,h remarks with much indignation the vast complication of perjury and subornation of perjury, in this solemn farce of a mock trial; the witnesses, the compurgators, and the jury, being all of them partakers in the guilt: the delinquent party also, though convicted before on the clearest evidence, and conscious of his own offence, yet was permitted evidence, and conscious of his own offence, yet was permitted and almost compelled to swear himself not guilty: nor was the good bishop himself, under whose countenance this scene of wickedness was daily transacted, by any means exempt from a share of it. and yet by this purgation the party was restored to his credit, his liberty, his lands, and his capacity of purchasing afresh, and was entirely made a new and an innocent man.   g 3 P. Wms. 447. Hob. 289. h hon. 291. [362] THIS scandalous prostitution of oaths, and the forms of justice, in the almost constant acquittal of felonious clerks by purgation, was the occasion, that, upon very heinous and notorious circumstances of guilt, the temporal courts would not trust the ordinary with the trial of the offender, but delivered over to him the convicted clerk, absque purgatione facienda: in which situation the clerk convict could not make purgation; but was to continue in prison during life, and was incapable of acquiring any personal property, or receiving the profits of his lands, unless the king should please to pardon him. Both these courses were in some degree exceptionable; the latter being perhaps too rigid, as the former was productive of the most abandoned perjury. As therefore these mock trials took their rise from factious and popish tenets, tending to exempt one part of the nation from the general municipal law; it became high time, when the reformation was thoroughly established, to abolish so vain and impious a ceremony. ACCORDINGLY the statute 18. Elix. c. 7. enacts, that, for the avoiding of such perjuries and abuses, after the offender has been allowed his clergy, he shall not be delivered to the ordinary, as formerly; but, upon such allowance and burning in the hand, he shall forthwith be enlarged and delivered out of prison; with proviso, that the judge may, if he thinks fit, continue the offender in gaol for any time not exceeding a year. And thus the law continued, for above a century, unaltered; except only that the statute 21 Jac. I. c. 6. allowed, that women convicted of simple larcenies under the value of ten shillings should, (not properly have the benefit of clergy, for they were not called upon to read; but) be burned in the hand, and whipped, stocked, or imprisoned for any time not exceeding a year. And a similar indulgence, by the statutes 3 & 4 W. & M. c. 9. and 4 & 5 W. & M. c. 24. was extended to women, guilty of any clergyable felony whatsoever; who were allowed to claim the benefit of the statute, in like manner as men might claim the benefit of clergy, [363] and to be discharged upon being burned in the hand, and imprisoned for any time not exceeding a year. All women, all peers, and all commoners who could read, were therefore discharged in such felonies; absolutely, if clerks in orders; and for the first offence, upon burning in the hand, if lay: yet all liable (excepting peers) if the judge saw occasion, to imprisonment not exceeding a year. And those men, who could not read, if under the degree of peerage, were hanged. AFTERWARDS indeed it was considered, that education and learning were no extenuations of guilt, but quite the reverse: and that, if the punishment of death for simple felony was too severe for those who had been liberally instructed, it was, a fortiori, too severe for the ignorant also. And thereupon by statute 5 Ann. c. 6. it was enacted, that the benefit of clergy should be granted to all those who were intitled to ask it, without requiring them to read by way of conditional merit. BUT a few years experience having shewn, that this universal lenity was frequently inconvenient, and an encouragement to commit the lower degrees of felony; and that, though capital punishments were too rigorous for these inferior offences, yet no punishment at all (or next to none, as branding or whipping) was as much too gentle; it was enacted by statutes 4 Geo. I. c. 11. and 6 Geo. I. c. 23. that when any persons shall be convicted of any larceny, either grand or petit, and shall be entitled to the benefit of clergy, ori liable only to the penalties of burn-   i The printed statute book reads and instead of or: and, if that be the true reading, it may be doubted, and, as the consequence may in some cases be capital, in deserves to be explained by the legislature, whether women, and persons convicted of petit larceny, are strictly within these statutes of George the first; for the statutes, as printed, seem to extend only to such convicts as are entitled to the benefit of clergy, which no woman, or petit larciner, properly is. For, with regard to the female sex, the statutes of William and Mary (before referred to) very anxiously distinguish between the benefit of clergy, which extends only to men, and the benefit of the statute 3 & 4 W. & M. which is allowed to be claimed by women: and the statute of Anne (as is hereafter observed) doth not entitle any one to the benefit of clergy but such as were entitled before; as its whole operation is merely to dispense with their reading. [364] ing in the hand or whipping, the court in their discretion, instead of such burning in the hand or whipping, may direct such offenders to be transported to America for seven years: and, if they return within that time, it shall be felony without benefit of clergy. IN this state does the benefit of clergy at present stand; very considerably different from its original institution: the wisdom of the English legislature having, in the course of a long and laborious process, extracted by a noble alchemy rich medicines out of poisonous ingredients; and converted, by gradual mutations, what was at first an unreasonable exemption of particular popish ecclesiastics, into a merciful mitigation of the general law, with respect to capital punishment. FROM the whole of this detail we may collect, that, however in times of ignorance and superstition that monster in true policy may for a while subsist, of a body of men, residing in the bowels of a state, and yet independent of its laws; yet, when learning and rational religion have a little enlightened men's minds, society can no longer endure an absurdity so gross, as must destroy its very fundamentals. For, by the original contract of government, the price of protection by the united force of individuals is that of obedience to the united will of the community. This united will is declared in the laws of the land: and that united force in exerted in their due, and universal, execution. II. I AM next to enquire, to what persons the benefit of clergy is to be allowed at this day: and this must be chiefly collected from what has been observed in the preceding article. For, upon the whole, we may pronounce, that all clerks in orders are, without any branding, and of course without any transportation, (for that is only substituted in lieu of the other) to be admitted to this privilege, and immediately discharged, or at most only confined for [365] one year: and this as often as they offend.k Again, all lords of parliament and peers of the realm, by the statute 1 Edw. VI. c. 12. shall be discharged in all clergyable and other felonies, provided for by the act, without any burning in the hand, in the same manner, as real clerks convict: but this is only for the first offence. Lastly, all the commons of the realm, not in orders, whether male or femalel, shall for the first offence be discharged of the punishment for felonies, within the benefit of clergy; upon being burnt in the hand, imprisoned for a year, or less; or, in case of larceny, being transported for seven years, if the court shall think proper. It hath been said, that Jews, and other infidels and heretics, were not capable of the benefit of clergy, till after the statute 5 Ann. c. 6. as being under a legal incapacity for orders.m But, with deference to such respectable authority, I much question whether this was ever ruled for law, since the re-introduction of the Jews into England, in the time of Oliver Cromwell. For, if that were the case, the Jews are still in the same predicament, which every day's experience will contradict: the statute of queen Anne having certainly made no alteration in this respect; it only dispensing with the necessity of reading in those persons, who, in case they could read, were before the act entitled to the benefit of their clergy. III. THE third point to be considered is, for what crimes the privilegium clericale, or benefit of clergy, is to be allowed. And, it is to be observed, that neither in high treason, nor in petit larceny, nor in any mere misdemeanors, it was indulged at the common law; and therefore we may lay it down for a rule, that it was allowable only in petit treason and felonies: which for the most part became legally intitled to this indulgence by the statute de clero, 25 Edw. III. st. 3. c. 4. which provides, that clerks convict for treasons or felonies, touching other persons than the king himself or his royal majesty, shall have the privilege of holy   k 2 Hal. P. C. 375. l See note i. m 2 Hal. P. C. 373. 2 Hawk. P. C. 338. Fost. 306. [366] church. But yet it was not allowable in all felonies whatsoever: for in some it was denied even by the common law, viz. infidiatio viarum, or lying in wait for one on the highway; depopulatio agrorum, or destroying and ravaging a country;n and combustio domorum, or arson, that is, the burning of houses;o all which are king of hostile acts, and in some degree border upon treason. And farther, all these identical crimes, together with petit treason, and very many other acts of felony, are ousted of clergy by particular acts of parliament; which have in general been mentioned under the particular offences to which they belong, and therefore need not be here recapitulated. Of all which statutes for excluding clergy I shall only observe, that they are nothing else but the restoring of the law to the same rigor of capital punishment in the first offence, that in exerted before the privilegium clericale was at all indulged; and which it still exerts upon a second offence in almost all kinds of felonies, unless committed by clerks actually in orders. We may also remark, that by the marine law, as declared in statute 28 Hen. VIII. c. 15. the benefit of clergy is not allowed in any case whatsoever. And therefore when offences are committed within the admiralty-jurisdiction, which would be clergyable if committed by land, the constant course is to acquit and discharge the prisoner.p And lastly, under this head of enquiry, we may observe the following rules: 1. That in all felonies, whether new created or by common law, clergy is now allowable, unless taken away by express words of an act of parliament.q 2. That, where clergy is taken away from the principal, it is not of course taken away from the accessory, unless he be also particularly included in the words of the statute.r 3. That, when the benefit of clergy is taken away from the offence, (as in case of murder, buggery, robbery, rape, and burglary) a principal in the second degree, aiding and abetting the crime, is as well excluded from his clergy as he that is principal in   n 2 Hal. P. C. 333. o 1 Hal. P. C. 346. p Moor. 756. Fost. 288. q 2 Hal. P. C. 330. r 2 Hawk. P. C. 342. [367] the first degree: but, 4. That, where it is only taken away from the person committing the offence, (as in the case of stabbing, or committing larceny in a dwelling house, or privately from the person) his aiders and abetters are not excluded; through the tenderness of the law, which hath determined that such statutes shall be taken literally.s IV. LASTLY, we are to enquire what the consequences are to the party, of allowing him this benefit of clergy. I speak not of the branding, imprisonment, or transportation; which are rather concomitant conditions, than consequences of receiving this indulgence. The consequences are such as affect his present interest, and future credit and capacity: as having been once a felon, but now purged from that guilt by the privilege of clergy; which operates as a kind of statute pardon. AND, we may observe, 1. That by his conviction be forfeits all his goods to the king; which, being once vested in the crown, shall not afterwards be restored to the offender.t 2. That, after conviction, and till he receives the judgment of the law, by branding or the like, or else is pardoned by the king, he is to all intents and purposes a felon, and subject to all the disabilities and other incidents of a felon.u 3. That, after burning or pardon, he is discharged for ever of that, and all other felonies before committed, within the benefit of clergy; but not of felonies from which such benefit is excluded: and this by statutes 8 Eliz. c. 4. and 18 Eliz. c. 7. 4. That by the burning, or pardon of it, he is restored to all capacities and credits, and the possession of his lands, as if he had never been convicted.v 5. That what is said with regard to the advantages of commoners and laymen, subsequent to the burning in the hand, is equally applicable to all peers and clergymen, although never branded at all. For they have the same privileges, without any burning, which others are intitled to after it.w   s 1 Hal. P. C. 529. Foster. 356. t 2 Hal. P. C. 388. u 2 P. Wms 487. v 2 Hal. P. C. 389. 5 Rep. 110. w 2 Hal. P. C. 389, 390. 47. fortioneatly: fortunately 48. only only: This, in the manuscript, is an instance of dittography. 49. Council: counsel. 50. principals: principles. 51. to have been influenced by any base or unworthy motive: Except, perhaps, that of wishing to ingratiate himself with the Regulators and that of advancing himself at the political expense of Thomas Knox Gordon. 52. which surely implys that Damages were to be given: And Lowndes, therefore, sought to have his cake and eat it too. 53. Mr. Justice Savages observations and fallacious: Here, a verb and a conjunct are wanted. 54. what had been thrown out in regard to the plaintiffs character: Lowndes is beside the point. That the jury may take account of character is not at issue. The question is whether, in a civil proceeding, a magistrate is allowed to express judgements of character which were not taken in evidence and, while so expressing himself, to play the role of adversary. 55. with the point in Issue: This, perhaps, should be read as ". . . that the point in Issue . . . ." 56. principals: principles. 57. a notorious abandoned thief in the possession of a stolen horse: By this, Lowndes means the plaintiff, John HARVEY. 58. least: lest. 59. his Directory the Jury: At the very least, a preposition is wanted here. The passage, perhaps, should be read as ". . . Directory to the Jury." 60. the other Judges were implicitly to Submit?: The question is purely rhetorical. 61. Singulize: signalize. 62. Injurious and Dangereous to Legal Freedom: Presumably, Gordon could have invited counsel for the plaintiff to submit a motion for a mistrial. 63. principals of law and justice: principles of law and justice. 64. there: their. 65. wither: whether. 66. a Despotick Jackise Cade: "Jackise," like "Jackie," is a diminutive of "Jack" as, in French, "Jacquis" and "Jacquise" are diminutives of "Jacques." "Jack," of course, is the diminutive of "John." Jack Cade was the leader of the Kentish uprising of 1450. About Jack Cade, see the following: Encyclopedia Britannica (1911):               CADE, JOHN (d. 1450), commonly called JACK CADE, English rebel and leader of the rising of 1450, was probably an Irishman by birth, but the details of his early life are very scanty. He seems to have resided for a time in Sussex, to have fled from the country after committing a murder, and to have served in the French wars. Returning to England, he settled in Kent under the name of Aylmer and married a lady of good position. When the men of Kent rose in rebellion in May 1450, they were led by a man who took the name of Mortimer, and who has generally been regarded as identical with Cade. Mr James Gairdner, however, considers it probable that Cade did not take command of the rebels until after the skirmish at Seven.Oaks on the 18th of June. At all events, it was Cade who led the insurgents from Blackheath to Southwark, and under him they made their way into London on the 3rd of July. A part of the populace was doubtless favourable to the rebels, but the opposing party gained strength when Cade and his men began to plunder. Having secured the execution of James Fiennes, Baron Say and Sele, and of William Crowmer, sheriff of Kent, Cade and his followers retired to Southwark, and on the 5th of July, after a fierce struggle on London Bridge, the citizens prevented them from re-entering the city. Cade then met the chancellor, John Kemp, archbishop of York, and William of Wayneflete, bishop of Winchester, and terms of peace were arranged. Pardons were drawn up, that for the leaders being in the name of Mortimer. Cade, however, retained some of his men, and at this time, or a day or two earlier, broke open the prisons in Southwark and released the prisoners, many of whom joined his band. Having collected some booty, he went to Rochester, made a futile attempt to capture Queenborough castle, and then quarrelled with his followers over some plunder. On the 10th of July a proclamation was issued against him in the name of Cade, and a reward was offered for his apprehension. Escaping into Sussex he was captured at Heathfield on the 12th. During the scuffle he had been severely wounded, and on the day of his capture he died in the cart which was conveying him to London. The body was afterwards beheaded and quartered, and in 1451 Cade was attainted. See Robert Fabyan, The New Chronicles of England and France, edited by H. Ellis (London, 1811); William of Worcester, Annales rerum Anglicarum, edited by J. Stevenson, (London, 1864); An English Chronicle of the Reigns of Richard II., Henry IV., Henry V. and Henry VI., edited by J. S. Davies (London, 1856); Historical Collections of a Citizen of London, edited by J. Gairdner (London, 1876); Three Fifteenth Century Chronicles, edited by J. Gairdner (London, 1880); J. Gairdner, Introduction to the Paston Letters (London, 1904); G. Kriehn, The English Rising of 1450 (Strassburg, 1892.)   Jack Cade, from an antimasque by Inigo Jones. Inigo Jones and Ben Jonson (1853). University of Victoria Library. Original in the Chatsworth Collection. The story of Jack Cade is best known from Shakespeare's account of the rebellion in Henry VI, Part II. Shakespeare portrays Cade as a ridiculous sort of communist: "Cade: Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven halfpenny loaves sold for a penny; the three-hooped pot shall have ten hoops; and I will make it felony to drink small beer. All the realm shall be in common, and in Cheapside shall my palfrey go to grass; and when I am king, as king I will be -- All: God save your majesty! Cade: I thank you, good people -- there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord." [Henry VI, Part Two, 4.2.65-76] Gordon's comparison of Lowndes to Jack Cade is thus invidious and identifies the Regulators as dangerous riff-raff. 67. At least: Unless. 68. Council: counsel. 69. acts decently and becoming his station: In this paragraph, with admirable concision, Gordon shows the whole ground of dispute between him and Lowndes. This is the question controlling the argument which Lowndes, in his rebuttal, deliberately evaded. 70. their: there 71. with partiality or under undue Influence: This, on the basis of Lowndes's own testimony, is a risible proposition. But it proves that, in this instance, Lowndes was not politically mistaken.