20 May 1771131


    At last August Term, continued by Adjournment to December 1770, the honorable Justices of the Superiour Court, passed the following Order.

    “ORDERED, That it be recommended to the Court of General Sessions of the Peace to make the Jurors, that were impannelled and sworn for the Trials of Capt. Thomas Preston, Esq; and the Soldiers, as also the Officers who kept them, a reasonable Allowance for said Service: said Preston’s Trial holding six Days, and said Soldiers nine Days; said Juries being kept together every Night by two or more Officers.”

    In consequence of this order, the jurors above named petitioned the Court of Sessions, for the above allowance; and the court having a doubt of their power touching the grant of the prayer thereof, ordered the petition to stand over for argument at the sessions in April:—and on last Wednesday THE POWER OF THE COURT to grant the prayer of the petition was argued by four gentlemen of the bar (pro and con) by desire of the honorable justices of the sessions.

    It seemed agreed by bench and bar, that the only power of the sessions to grant monies must be derived from provincial law; that such a power could be derived from no where else.—And the QUESTION was, whether the act of 4 of W. & M. C. 12. gave the Court a power to grant monies for the allowance before mentioned?

    The act is intitled “an act for the settlement of the bounds, and defraying the PUBLICK and NECESSARY CHARGES arising within each respective county in this province.”

    “And for the due and equal raising of monies for defraying of the charges arising within each respective county for the necessary repairs and amendments of bridges, prisons, the maintainance of poor prisoners, and ALL OTHER PROPER COUNTY CHARGES: It is enacted, that when and so often as there shall be NEED OF RAISING MONEY FOR THE ENDS AFORESAID in any county, the justices in quarter sessions for such county, receiving information thereof from the county-treasurer, shall agree and determine the whole sum to be raised, &c. and issue their orders, &c. to assess the same upon the inhabitants,” &c.

    The debates, at the bar, took up the day. And the justices, after this solemn hearing, (Mr. Justice Dunbar only doubting), were unanimously of opinion, that the prayer of the petition of the jurors should not be granted; and the petition was accordingly dismissed.

    It gives a most sensible pleasure, in these times, to find a court of justice, deciding a point of law, against an extension of their power: especially as that power would affect the purse of the subject.—This decision is of no small moment: It’s importance will appear, more conspicuous upon a close examen and reflection. However, it is yet a matter of deep concern with some, that the Superiour Court seem to entertain a different opinion on the point in question. They ordered a recommendation of this allowance to be made: They are presumed to know the law; and we are willing to suppose they would not influence, and much less recommend to a subordinate court, the exertion of an illegal power; a power derogatory to the natural and primary right of the subject over his property; and of the highest consequence to the community, considered in a seperate or collective view.

    The EXISTENCE and EXERTION of such a power in the sessions are of very extensive concernment: We, therefore, imagine all due consideration was had at passing the above order of recommendation:—and, if so, does not a becoming deference to the Supreme Court lead us to conjecture, that they were of opinion, that the court of sessions was by law vested with power to take money out of the pockets of the people to make that allowance, which it was thought expedient thus formally to recommend?132