Judge Drayton' s Address to the Grand Jury at Charlestown, South-Carolina

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At an adjournment of the Court of General Sessions of the Peace, Oyer and Terminer, Assize and General Jail Delivery, held at CHARLESTOWN, for the District of CHARLESTOWN, on TUESDAY, the 23d day of APRIL, 1776, before the Honourable WILLIAM HENRY DRAYTON, Esq˙, Chief Justice, and his Associates, Justices of the Colony of SOUTH-CAROLINA.

GENTLEMEN OF THE GRAND JURY: When, by evil machinations tending to nothing less than absolute tyranny, trials by jury have been discontinued, and juries, in discharge of their duty, have assembled, and, as soon as met, as silently and arbitrarily dismissed without being empannelled, whereby, in contempt of Magna Charta, justice has been delayed and denied; it cannot but afford to every good citizen the most sincere satisfaction once more to see juries, as they now are, legally empannelled, to the end that the laws may be duly administered. I do most heartily congratulate you upon so important an event.

In this Court, where silence has but too long presided, with a direct purpose to loosen the bands of Government, that this country might be involved in anarchy and confusion, you are now met to regulate your verdicts, under a new Constitution of Government, independent of Royal authority — a Constitution which arose according to the great law of nature and of nations, and which was established in the late Congress, on the 26th of March last — a day that will be ever memorable in this country — a month remarkable in our history, for having given birth to the original Constitution of our Government, in the year 1669; for being the era of the American calamities, by the Stamp Act, in the year 1765; for being the date of the repeal of that act, in the following year; and for the conclusion of the famous siege of Boston, when the American arms compelled General Howe, — a General of the first reputation in the British service, with the largest, best disciplined, and best provided Army in that service, supported by a formidable fleet — so precipitately to abandon the most impregnable fortifications in America, as that he left behind him a great part of the bedding, military stores, and cannon of the Army. And for so many important events is the month of March remarkable in our annals. But I proceed to lay before you the principal causes leading to the late revolution of our Government, the law upon the point, and the benefits resulting from that happy and necessary establishment. The importance of the transaction deserves such a state, the occasion demands, and our future welfare requires it. To do this may take up some little time; but the subject is of the highest moment, and worthy of your particular attention. I will, therefore, confine my discourse to that great point; and, after charging you to attend to the due observance of the Jury law, and the Patrol and Negro acts, forbearing to mention the other common duties of a Grand Jury, I will expound to you the Constitution of your country.

The House of Brunswick was yet scarcely settled in the British throne, to which it had been called by a free People, when, in the year 1719, our ancestors in this country, finding that the Government of the Lords Proprietors operated to their ruin, exercised the rights transmitted to them by

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With joyful acclamations our ancestors, by act of Assembly, passed on the 18th day of August, 1721, recognised the British, Monarch. The virtues of the second George are still revered among us; he was the father of his People; and it was with ecstasy we saw his grandson, George the Third, mount the throne, possessed of the hearts of his subjects.

But alas! almost with the commencement of his reign, his subjects felt causes to complain of Government. The reign advanced — the grievances became more numerous and intolerable — the complaints more general and loud — the whole Empire resounded with the cries of injured subjects! At length, grievances being unredressed and ever increasing; all patience being borne down; all hope destroyed; all confidence in Royal Government blasted; behold! the Empire is rent from pole to pole! perhaps to continue asunder forever.

The catalogue of our oppressions, Continental and local, is enormous. Of such oppressions I will mention only some of the most weighty.

Under color of law, the King and Parliament of Great Britain have made the most arbitrary attempts to enslave America:

By claiming a right to bind the Colonies "in all cases whatsoever;"

By laying duties at their mere will and pleasure upon all the Colonies;

By suspending the Legislature of New-York;

By rendering the American Charters of no validity, having annulled the most material parts of the Charter of the Massachusetts-Bay;

By divesting multitudes of the Colonists of their property, without legal accusation or trial;

By depriving whole Colonies of the bounty of Providence, on their own proper coasts, in order, to coerce them by famine;

By restricting the trade and commerce of America;

By sending to, and continuing in America, in time of peace, an armed, force, without and against the consent of the People;

By granting impunity to a Soldiery instigated to murder the Americans;

By declaring that the People of Massachusetts-Bay are liable, for offences, or pretended offences, done in that Colony, to be sent to, and tried for the same in England, or in any Colony where they cannot have the benefit of a jury of the vicinage;

By establishing in Quebeck the Roman Catholick Religion, and an arbitrary Government; instead of the Protestant Religion and a free Government.

And thus America saw it demonstrated that no faith ought to be put in a Royal Proclamation; for I must observe to you that, in the year 1763, by such a proclamation, people were invited to settle in Canada, and were assured of a legislative representation, the benefit of the common law of England, and a free Government. It is a misfortune to the publick, that this is not the only instance of the inefficacy of a Royal Proclamation. However, having given you one instance of a failure of Royal faith in the Northern extremity of this abused Continent, let it suffice that I direct your attention to the Southern extremity; respecting which, the same particulars were, in the same manner promised, but the deceived inhabitants of St˙ Augustine are left, by their Grand Jury, in vain to complain and lament to the world, and yet scarcely permitted to exercise even that privilege distinguishing the miserable, that Royal faith is not kept with them.

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The proceedings which I have enumerated, either immediately or in their evident consequences, deeply affected all the Colonies; ruin stared them in the face. They united their counsels, and laid their just complaints before the Throne, praying a redress of grievances. But, to their astonishment, their dutiful petition for peace and safety was answered only by an actual commencement of war and military destruction!

In the mean time the British troops, that had been peaceably received by the devoted inhabitants of Boston as the troops of their Sovereign bound to protect them, fortified that town, to imprison the inhabitants, and to hold that capital against the people to whom it belonged. And the British rulers, having determined to appeal from reason and justice to violence and arms, a select body of those troops, being in the night suddenly and privately marched from Boston, at Lexington, on the 19th day of April, 1775, they by surprise drew the sword of civil war, and plunged it into the breasts of the Americans! Against this horrid injustice the Almighty gave instant judgment — a handful of country Militia, badly armed, suddenly collected, and unconnectedly and irregularly brought up to repel the attack, discomfited the regular bands of tyranny; they retreated, and night saved them from total slaughter.

Thus forced to take up arms in our own defence, America yet again most dutifully petitioned the King, that he would "be pleased to direct some mode by which the united applications of his faithful Colonists to the Throne, in presence of their common councils, might be improved into a happy and permanent reconciliation; and that, in the mean time, measures might be taken for preventing the further destruction of the lives of his Majesty' s subjects;" but it was in vain! The petition on the part of millions, praying that the effusion of blood might be stayed, was not thought worthy of an answer! The nefarious war continued. The ruins of Charlestown, Falmouth, and Norfolk, (towns not constructed for offence or defence,) mark the humane progress of the Royal arms. So the ruins of Carthage, Corinth, and Numantium, proclaimed to the world that justice was expelled the Roman Senate! On the other hand, the fortitude with which America has endured these civil and military outrages; the union of her people, as astonishing as unprecedented, when we consider their various manners and religious tenets, their distance from each other, their various and clashing local interests, their self-denial, and their miraculous success in the prosecution of the war — I say, these things all demonstrate that the Lord of Hosts is on our side. So it is apparent, that the Almighty constructor of the universe, having formed this Continent of materials to compose a State pre-eminent in the world, is now making use of the tyranny of the British rulers as an instrument to fashion and arrange those materials for the end for which, in his wisdom, he had formed them.

In this enlightened age humanity must be particularly shocked at a recital of such violences. And it is scarce to be believed, that the British tyranny could entertain an idea of proceeding against America by a train of more dishonourable machinations. But nothing less than absolute proof has convinced us that, in carrying on the conspiracy against the rights of humanity, the tyranny is capable of attempting to perpetrate whatever is infamous.

For the little purpose of disarming the imprisoned inhabitants of Boston, the King' s General, Gage, in the face of day, violated the publick faith, by himself plighted; and in concert with other Governours, and with John Stuart, he made every attempt to instigate the Savage nations to war upon the Southern Colonies, indiscriminately to massacre man, woman, and child. The Governours in general have demonstrated that truth is not in them; they have inveigled Negroes from, and have armed them against their masters; they have armed brother against brother, son against father. Oh! Almighty Director of the universe! what confidence can be put in a Government ruling by such engines, and upon such principles of unnatural destruction. A Government that, upon the 21st day of December last, made a law, ex post facto, to justify what had been done, not only without law, but in its nature unjust — a law to make prize of all vessels trading in, to, or from the United Colonies — a law to make slaves of the crews of such vessels, and to compel them to bear arms against their conscience, their fathers, their bleeding country. The world, so old as it is, heretofore had never

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The King' s judges in this country refused to administer justice; and the late Governour, Lord William Campbell, acting as the King' s representative for him, and on his behalf, having endeavoured to subvert the Constitution of this country, by breaking the original contract between King and People, attacking the People by force of arms; having violated the fundamental laws; having carried off the great seal, and having withdrawn himself out of this Colony, he abdicated the Government.

Oppressed by such a variety of enormous injuries, Continental and local, civil and military, and by divers other arbitrary and illegal courses — all done and perpetrated by the assent, command, or sufference, of the King of Great Britain, the Representatives of South-Carolina, in Congress assembled, found themselves under an unavoidable necessity of establishing a form of Government, with powers legislative, executive, and judicial, for the good of the People — the origin and great end of all just Government. For this only end, the House of Brunswick was called to rule over us. Oh! agonizing reflection! that House ruled us with swords, fire, and bayonets. The British Government operated only to our destruction. Nature cried aloud, self-preservation is the great law; we have but obeyed.

If I turn my thoughts to recollect in history a change of Government upon more cogent reasons, I say I know of no change upon principles so provoking — compelling — justifiable. And in these respects, even the famous Revolution in England, in the year 1688, is much inferior. However, we need no better authority than that illustrious precedent; and I will therefore compare the causes of, and the law upon the two events.

On the 7th of February, 1688, the Lords and Commons of England, in Convention, completed the following Resolution:

"Resolved, That King James the Second, having endeavoured to subvert the Constitution of the Kingdom, by breaking the original contract between King and People; and, by the advice of Jesuits and other wicked persons, having violated the fundamental laws, and having withdrawn himself out of this Kingdom, has abdicated the Government, and that the Throne is thereby vacant."

That famous Resolution deprived James of his Crown, and became the foundation on which the Throne of the present King of Great Britain is built; it also supports the edifice of Government which we have erected.

In that resolve there are but three facts stated to have been done by James. I will point them out, and examine whether those facts will apply to the present King of Great Britain, with regard to the operations of Government, by him or his Representative, immediately, or by consequence affecting this Colony.

The first fact is, the having endeavoured to subvert the Constitution of the Kingdom, by breaking the original contract.

The violation of the fundamental laws is the second fact:; and in support of these two charges, the Lords Spiritual and Temporal and Commons, assembled at Westminster, on the; 12th day of February, 1688, declared that James was guilty:

"By assuming and exercising a power of dispensing with:, and suspending of Laws, and the execution of Laws, without consent of Parliament;

"By committing and prosecuting divers worthy Prelates, for humbly petitioning to be excused from concurring to the said assumed power;

"By issuing and causing to be executed a Commission; under the great seal, for erecting a Court, called the Court of Commissioners for Ecclesiastical Causes;

"By levying Money for, and to the use of the Crown, by pretence of prerogative, for other time, and in other manner than the same was granted by Parliament;

"By raising and keeping a Standing Army within this Kingdom in time of peace, without consent of Parliament, and quartering Soldiers contrary to law;

"By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law;

"By violating the freedom of election of Members to serve in Parliament;

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This declaration, thus containing two points of criminality — breach of the original contract, and violation of fundamental laws — I am to distinguish one from the other.

In the first place, then, it is laid down in the best law authorities, that protection and subjection are reciprocal; and that these reciprocal duties form the original contract between King and People. It therefore follows, that the original contract was broken by James' s conduct, as above stated, which amounted to a not affording due protection to his People. And it is as clear that he violated the fundamental laws, by the suspending of laws, and the execution of laws; by levying money; by violating the freedom of election of members to serve in Parliament; by keeping a Standing Army in time of peace; and by quartering soldiers contrary to law, and without consent of Parliament; which is as much as to say, that he did those things without consent of the Legislative Assembly chosen by the personal election of that People over whom such doings were exercised.

These points, reasonings, and conclusions, being settled in, deduced from, and established upon Parliamentary proceedings, and the best law authorities, must ever remain unshaken. I am now to undertake the disagreeable task of examining whether they will apply to the violences which have lighted up, and now feed the flames of civil war in America.

James the Second suspended the operations of laws: George the Third caused the Charter of the Massachusetts-Bay to be in effect annihilated; he suspended the operation of the law which formed a Legislature in New-York, vesting it with adequate powers; and thereby he caused the very ability of making laws in that Colony to be suspended.

King James levied money without the consent of the Representatives of the People called upon to pay it: King George, has levied money upon America, not only without, but expressly against the consent of the Representatives of the People in America.

King James violated the freedom of election of Members to serve in Parliament: King George, by his Representative, Lord William Campbell, acting for him and on his behalf, broke through a fundamental law of this country, for the certain holding of General Assemblies; and thereby, as far as in him lay, not only violated, but annihilated the very ability of holding a General Assembly.

King James in time of peace kept a Standing Army in England, without consent of the Representatives of the People among whom that army was kept: King George hath in time of peace invaded this Continent with a large Standing Army, without the consent, and he hath kept it within this Continent expressly against the consent of the Representatives of the People among whom that army is posted.

All which doings by King George the Third, respecting America, are as much contrary to our interests and welfare; as much against law, and tend as much, at least, to subvert and extirpate the liberties of this Colony, and of America, as the similar proceedings by James the Second operated respecting the People of England. For the same principle of law, touching the premises, equally applies to the People of England in the one case, and to the People of America in the other; and this is the great principle: Certain acts done over and affecting a People, against and without their consent expressed by themselves, or by Representatives of their own election. Upon this only principle was grounded the complaints of the People of England; upon the same is grounded the complaints of the People of America. And hence it clearly follows, that if James the Second violated the fundamental laws of England, George the Third hath also violated the fundamental laws of America.

Again: King James broke the original contract by not affording due protection to his subjects, although he was not charged with having seized their towns, and with having held them against the people; or with having laid them in ruins by his arms; or with having seized their vessels; or with having pursued the people with fire and sword; or with having declared them Rebels, for resisting his arms levelled to destroy their lives, liberties, and properties. But George the Third hath done all these things against America; and it is therefore undeniable that be halt) not afforded

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Again: The third fact charged against James is, that he withdrew himself out of the Kingdom. And we know that the people of this country have declared that Lord William Campbell, the King of Great Britain' s Representative, "having used his utmost efforts to destroy the lives, liberties, and properties of the good people here, whom, by the duty of his station, he was bound to protect, withdrew himself out of the Colony." Hence it will appear that George the Third hath withdrawn himself out of this Colony, provided it be established that exactly the same natural consequence resulted from the withdrawing in each case respectively — King James personally out of England, and King George out of Carolina, by the agency of his substitute and representative, Lord William Campbell. By King James' s withdrawing, the Executive Magistrate was gone; thereby, in the eye of the law, the Executive Magistrate, was dead, and, of consequence, Royal Government actually ceased in England; so by King George' s Representative' s withdrawing, the Executive Magistrate was gone, the death in law became apparent, and, of consequence, Royal Government actually ceased in this Colony. Lord William withdrew as the King' s Representative, carrying off the great seal and Royal Instructions to Governours; and acting for and on the part of his principal, by every construction of law that conduct became the conduct of his principal; and thus, James the Second withdrew out of England, and George the Third withdrew out of South-Carolina; and by such a conduct, respectively, the People in each country were exactly in the same degree injured.

The three facts against King James being thus stated and compared with similar proceedings by King George, we are now to ascertain the result of the injuries done by the first, and the law upon that point; which, being ascertained, must naturally constitute the judgment in law, upon the result of the similar injuries done by the last. And I am happy that I can give you the best authority upon this important point.

Treating upon this great precedent in constitutional law, the learned Judge Blackstone declares, that the result of the facts "amounted to an abdication of the Government; which abdication did not only affect the person of the King himself, but, also, all his heirs, and rendered the throne absolutely and completely vacant."

Thus it clearly appears that the Government was not abdicated, and the throne vacated, by the resolution of the Lords and Commons; but that the resolution was only declaratory of the law of nature and reason, upon the result of the injuries proceeding from the three combined facts of mal-administration. And thus, as I have, on the foot of the best of authorities, made it evident that George the Third, King of Great Britain, has endeavoured to subvert the Constitution of this country, by breaking the original contract between King and People; by the advice of wicked persons has violated the fundamental laws, and has withdrawn himself, by withdrawing the constitutional benefits of the Kingly office and his protection out of this country, — from such a result of injuries, from such a conjuncture of circumstances, the law of the land authorizes me to declare, and it is my duty boldly to declare the law, that George the Third, King of Great Britain, has abdicated the Government, and that the throne is thereby vacant, that is, he has no authority over us, and we owe no obedience to him. The British Ministers already have presented a charge of mine to the notice of the Lords and Commons in Parliament; and I am nothing loth that they take equal resentment against this charge; for, supported by the fundamental laws of the Constitution, and engaged as I am in the cause of virtue, I fear no consequences from their machinations.

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Thus having stated the principal causes of our last Revolution, it is as clear as the sun in meridian that George the Third has injured the Americans at least as grievously as James the Second injured the People of England; but that James did not oppress these in so criminal a manner as George has oppressed the Americans. Having also stated the law on the case, I am naturally led to point out to you some of the great benefits resulting from that Revolution.

In one word, then, you have a form of Government in every respect preferable to the mode under the British authority. And this will most clearly appear by contrasting the two forms of Government.

Under the British authority, Governours were sent over to us who were utterly unacquainted with our local interests, the genius of the people, and our laws. Generally, they were but too much disposed to obey the mandates of an arbitrary Ministry; and if the Governour behaved ill, we could not by any peaceable means procure redress. But, under our present happy Constitution, our Executive Magistrate arises according to the spirit and letter of Holy Writ: "Their Governours shall proceed from the midst of them." Thus, the people have an opportunity of choosing a man intimately acquainted with their true interests, their genius, and their laws; a man perfectly disposed to defend them against arbitrary Ministers, and to promote the happiness of that people from among whom he was elevated, and by whom, without the least difficulty, he may be removed and blended in the common mass.

Again, under the British authority it was in effect declared, that we had no property; nay, that we could not possess any; and that we had not any of the rights of humanity. For men who knew us not; men who gained in proportion as we lost, arrogated to themselves a right to bind us in all cases whatsoever. But our Constitution is calculated to free us from foreign bondage; to secure to us our property; to maintain to us the rights of humanity; and to defend us and our posterity against British authority, aiming to reduce us to the most abject slavery.

Again, the British authority declared that we should not erect slitting-mills; and to this unjust law we implicitly and respectfully submitted, so long as with safety to our lives we could yield obedience to such authority. But a resolution of Congress now grants a premium to encourage the construction of such mills. The British authority discouraged our attempting to manufacture for our own consumption; but the new Constitution, by authorizing the disbursement of large sums of money, by way of loan or premium, encourages the making of iron bar-steel, nail-rods, gun-locks, gun-barrels, sulphur, nitre, gunpowder, lead, woollens, cottons, linens, paper, and salt.

Upon the whole, it has been the policy of the British authority to oblige us to supply our wants at their market, (which is the dearest in the known world,) and to cramp and confine our trade so as to be subservient to their commerce, our real interest being ever out of the question. On the other hand, the new Constitution is wisely adapted to enable us to trade with foreign nations, and thereby to supply our wants at the cheapest markets in the universe; to extend our trade infinitely beyond what it has ever been known; to encourage manufacturers amongst us; and it is peculiarly formed to promote the happiness of the People, from among whom, by virtue and merit, the poorest man may arrive at the highest dignity. Oh, Carolimans! happy would you be under this new Constitution, if you knew your happy state.

Possessed of a constitution of Government, founded upon so generous, equal, and natural a principle — a Government expressly calculated to make the People rich, powerful, virtuous, and happy — who can wish to change it, to return under a Royal Government, the vital principles of which are the reverse in every particular? It was my duty to lay this happy Constitution before you in its genuine light. It is your duty to understand, to instruct others, and to defend it.

I might here, with propriety, quit this truly important subject; but my anxiety for the publick weal compels me yet to detain your attention, while I make an observation or two upon one particular part of the Constitution.

When all the various attempts to enslave America by fraud, under guise of law, by military threats, by famine, massacre, breach of publick faith, and open war — I say,

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But while I declare thus much on the one side, on the other it is my duty also to declare that, in my opinion, out-true commercial interests cannot be provided for but by such a material alteration of the British acts of Navigation as, according to the resolve of the honourable the Continental Congress, will "secure the commercial advantages of the whole Empire to the Mother Country, and the commercial benefits of its respective members;" and that our liberties and safety cannot be depended upon if the King of Great Britain should be allowed to hold our forts and cannon, or to have authority over a single regiment in America, or a single ship-of-war in our ports. For if he hold our forts, he may turn them against us, as he did Boston against her proprietors. If he acquire our cannon, he will effectually disarm the Colony. If he has a command of troops among us, even if we raise and pay them, shackles are fixed upon us; witness Ireland and her National Army. The most express act of Parliament cannot give us security; for acts of Parliament are as easily repealed as made. Royal Proclamations are not to be depended upon; witness the disappointments of the inhabitants of Quebeck and St˙ Augustine. Even a change of Ministry will not avail us, because, notwithstanding the rapid succession of Ministers, for which the British. Court has been famous during the present reign, yet the same ruinous policy ever continued to prevail against America. In short, I think it my duty to declare, in the awful seat of justice, and before Almighty God, that, in my opinion, the Americans can have no safety but by the Divine favour, their own virtue, and their being so prudent as not to leave it in the power of the British rulers to injure them.

Indeed, the ruinous and deadly injuries received on our side, and the jealousies entertained (and which, in the nature of things, must daily increase against us) on the other, demonstrate to a mind in the least given to reflection upon the rise and fall of empires, that true reconcilement never can exist between Great Britain and America, the latter being in subjection to the former. The Almighty created America to be independent of Britain. Let us beware of the impiety of being backward to act as instruments in the Almighty hand, now extended to accomplish his purpose, and by the completion of which, alone, America, in the nature of human affairs, can be secure against the craft and insidious designs of her enemies, who think her prosperity and power already by far too great. In a word, our piety and political safety are so blended, that to refuse our labour; in this Divine work, is to refuse to be a great, a free, a pious, and a happy People.

And now, having left the important alternative, (political happiness or wretchedness,) under God, in a great degree in your own hands, I pray the Supreme Arbiter of the affairs of men so to direct your judgment as that you may act agreeable to what seems to be His will, revealed in His miraculous works in behalf of America, bleeding at the altar of Liberty!