Minutes of HM Council: 16 May 1749

At a Council holden (by adjournment) at the house of His Excellency the Governor on Tuesday the 16th of May 1749.

Present:
His Excellency William Popple Esq Governor
The Hon. Francis Jones Esqr
Leond White, Esqr
Samuel Burrows Esqr
Samuel Spofforth Esqr
Henry Corbusier Esqr

The following joynt opinion of the Attorney Genl. & councellor learned in the Law yesterday named, being this day exhibitted by the said Attorney Genl., it was read in the words following.
Vizt.

May it please Yor. Excellency & Honours.
In obedience to yor. comands signified to us in an order of Council of yesterday. We have considered the subject matter thereof and altho we conceive the not finding persons to act as judges at the ensuing Court will be of utmost bad consequence to Bermuda (as the way to Justice will be thereby stopt) yet we cannot see how any uncommon steps can be taken, for as the Court is described by the law of Bermuda, we think his Excellency can only appoint one or more persons as judges, or commission to preside in such Courts, and all innovations in matters of this kind are dangerous, we would not advise making out any other commission (could it avail but in the usual form directed to such person or persons as his Excellency shall see fitt), and as the Council cannot recommend any persons to act His Excellency may yet at all events appoint somebody.
May 10th, 1749
John Reeve, John Slater

After which his Excellency delivered this speech in the following words (vizt)

Gentlemen of the Council
It is my duty to lay before you the present state of the Country with respect to justice.

By the refusal of some who are qualified to act as Chief Judge, the unwillingness of others to act in that high station, though at the same time they would as assistants under the Chief, and the incapacity of others or in other respects their unfitness, the door of justice is in danger of being shutt.

The consequence of this must be a state of anarchy, in which all offences may with impunity be committed, or else Justice must be administered by persons incapable, or, as I said before, otherwise unfit.

In this exigency I required your advice how to act. You thought proper before any determination to consult His Majesties Attorney and the best councel that could be got here.

You have their opinion now before you which amounts in few words to this, that the door must not be shut, but the post be filled up, that there may be no stagnation in the course of justice.

This, Gentlemen, is the present dilemma to which the Country is reduced. This is the present object of our considerations. It may not be improper to enquire how the Country comes to be reduced to this dilemma. It has been said "That if the late judges had been suffered to continue to act this would not have happened" by which it should seem, as if it was the occasion of it

On teh 9th March last I mentioned in Council and on the 10th by letter repeated the behaviour of the late Judges to you and on the 2nd instant entered the paper I formerly communicated specifying their behaviour. I supported my charge against them by the Act of Parliament and of Assembly, against which they acted, while sitting on the Bench commissioned for that purpose to render justivce. I also by the best authority, no less than my Lord Coke, shewed that they had determined their own commission and rendered null whatever they transacted from and after the 11th of December.

I further acquainted you, that there were other illegalitys in their proceedings, and that I should transmit these proceedings home, with my observations thereon, as the foundation of my motion for the appointment of new judges, and desired you would recommend proper persons to me.

As this was my opinion of their conduct and the suffering them to act under a former commission or reappointing them, would have been in the first case, to have justice, be distributed without legal commission, or if my opinion as to the determination of the commission was wrong to law as the adjournment was, and thereby have given a sanction to their proceedings since that day. and in the second case, if they would have accepted a new commission reappointing them would have been to have suffered Gentlemen to have acted again, in a post in which conceived they had already acted in severall particulars, contrary to law.

This Gentlemen is what I have to say with respect to myself, this must justifye or condemn me at home, And on this principle I cannot look upon myself as the occasion of the present dilemma.

I will not pretend to say from whence the present dilemma arises, but will only in general observe, that if any of the gentlemen properly qualified wuld have acted or would still act the present dilemma would no longer subsist.

And then His Excellency moved to the Council whether they would advise him to appoint George Forbes Esqr to act as Chief Judge.
Whom the Council approved of and he was accordingly appointed.