II.

SCHEME FOR REPLEVYING GOODS UNDER DISTRESS FOR RENT. GEORGE MASON, DECEMBER 23, 1765.

The policy of encouraging the importation of free people and discouraging that of slaves has never been duly considered in this colony, or we should not at this day see one half of our best lands in most parts of the country remain unsettled and the other cultivated with slaves; not to mention the ill effect such a practice has upon the morals and manners of our people. One of the first signs of the decay and perhaps the primary cause of the destruction of the most flourishing government that ever existed was the introduction of great numbers of slaves, an evil very pathetically described by the Roman historians. But it is not the present intention to expose our weakness by examining this subject too freely. That the custom of leasing lands is more beneficial to the community than that of settling them with slaves is a maxim that will hardly be denied in any free country. Though it may not be attended with so much immediate profit to the landholder, in proportion as it is useful to the public, the invitations from the Legislature to pursue it should be stronger. No means seem so natural as securing the payment of rents in an easy and effective manner. The little trouble and risk attending this species of property may be considered as an equivalent to the greater profit arising from the labor of slaves, or any other precarious and troublesome estate.

The common law (independent of any statute) gives the landlord a right to distrain upon anything on his land for the rent due; that is, it puts the remedy into his own hands. But as so unlimited a power was liable to be abused, it was found necessary to punish the abuse of it by penal statutes, made in terrorem, to preserve justice and prevent the oppression which the poor might otherwise suffer from the rich; not to destroy the landlord's right, which still remained unimpeached, and has not only been exercised in this colony from its first settlement, but has obtained in our mother-country from time immemorial. Uninterrupted and long experience carry with them a conviction of general utility.

The fluctuating state of our trade, the uncertainty of our markets, and the scarcity of money frequently render it impracticable for the debtor to raise money out of his effects to discharge a sudden and perhaps unexpected judgment, and have introduced a law giving the debtor a right to replevy his goods under execution by bond with security (approved by the creditor) to pay the debt and costs with interest in three months; which bonds are returnable to the clerk's office whence the execution issued, to remain in the nature of judgments, and final executions may be obtained upon them when due by a motion to the court with ten days' notice to the parties. The Legislature considering distresses for rents in the same light with executions for common debts, has thought fit to extend the same indulgence to them, though it would not be hard to show that the cases are by no means similar, and that the reasons which are just in the former do not hold good in the latter. By comparing the laws there also appears such an inconsistency in that relating to replevin bonds for rent as may render the method prescribed difficult, if not impracticable; there being no previous record (as in the case of executions), the bonds do not seem properly returnable to the clerk's office, nor is that matter clearly expressed or provided for in the act. This has not hitherto been productive of much inconvenience, though contrary to the course and spirit of the common law, the landlord may thereby be brought into a court of judicature before he can get the effect of a just and legal distress, but in our present circumstances it will occasion manifest injustice. If the officer making a distress, upon being offered security, refuses to take a bond for want of stamped paper, the goods of the tenant must be immediately exposed to sale and he deprived of the indulgence intended by the Act of Assembly. If the officer takes a replevin bond as usual, the landlord will lose his rent, the tenant then having it in his power to keep him out of it as long as he pleases; for in the present confusion and cessation of judicial proceedings, the landlord will not have an opportunity of applying to court for an execution when the bond becomes payable; or, if he does, the clerk will not venture to issue one. In either case there is such a hardship as calls for the interposition of the Legislature.

These inconveniencies, it is conceived, may be obviated if the

tenant, instead of replevying his goods by bond, had a right to supersede the distress for three months by application to a single magistrate, who should be empowered and required, upon the tenant producing, under the hand of the person making distress, a certificate of the rent distrained for and costs, to take from the principal and good securities a conditional confession of judgment, in the following or some such form.

"Virginia,

County S. S.-You, A. B., C. D. and E.

the costs of

and

F. of the said county do confess judgment unto G. H. of the county of for the sum of . . . due unto the said G. H. for rent, for which distress has been made upon the goods of the said A. B. and also for the sum of the said distress: which said sums of costs with legal interest from the date hereof to be levyed of your or either of your body's goods or chattels for the life of the said G. H. in case the said A. B. shall not pay and satisfy to the said G. H. the said sums of and

costs with interest thereon as aforesaid within three months at furthest from the date hereof. Taken and acknowledged the day of. . . before me, one of his majesty's justices of the peace for the said county of Given under my hand the

day and year aforesaid.

"To T. K., Sheriff or Constable
(as the case is)."

Which confession of judgment should restore to the tenant his goods, and be returned by the officer to the landlord, who at the end of the three months (giving the parties ten days' notice) should be entitled to an execution thereon, to be awarded by a single magistrate also.

This method will protect the tenant from oppression by confirming the indulgence the Act of Assembly formerly gave him, at the same time that it secures the landlord in the payment of his rent. And it can hardly be objected to as giving a single magistrate a new and dangerous jurisdiction, when it is considered that the application to a court on replevin bonds for rent was mere matter of form, in which the court could exercise no judicial power, and that an execution might as safely be awarded by a magistrate out of court in the case of rents, where (as has

been before observed) there was no original record or jurisdiction in the court but by the common law the sole power vested in the landlord, who, should the proposed alteration take place, will be as liable to be punished for the abuse of it as he was before. If the form of the judgment recommended is objected to as subjecting the body to execution in a case where the goods only were originally liable, let it be considered that it is at the tenant's own request the nature of his debt is changed; that when the landlord sues for rent, he may upon a judgment order a fi fa: or a ca: sa at his own option, and that he may do the same thing in the case of replevin bonds.

If some such alteration as is here proposed should be thought necessary, any little errors or deficiencies in this scheme may be easily corrected in drawing up the law.'

A draft of the "Address of the House of Burgesses to Governor Fauquier in 1765," in the handwriting of George Mason, has come to light recently among the Washington manuscripts in the State Department. It has been supposed hitherto that Richard Henry Lee was the author of this address, as it is found among his papers. It is possible that both Mason and Lee made copies from an original, of which the authorship is unknown. The paper, however, in its close reasoning and concise expression, is very much in George Mason's style. It is published in the Southern Literary Messenger, February, 1860.

III.

TO THE COMMITTEE OF MERCHANTS IN LONDON.

GENTLEMEN :

VIRGINIA, POtomack River,
June 6th, 1766.

There is a letter of yours dated the 20th of February last, lately printed in the public papers here, which, though addressed to a particular set of men, seems intended for the colonies in general; and, being upon a very interesting subject, I shall, without further

1 Manuscripts in Department of State.

preface or apology, exercise the right of a freeman in making such remarks upon it as I think proper.

The epithets of parent and child have been so long applied to Great Britain and her colonies, that individuals have adopted them, and we rarely see anything from your side of the water free from the authoritative style of a master to a schoolboy:

"We have with infinite difficulty and fatigue got you excused this one time; pray be a good boy for the future, do what your papa and mama bid you, and hasten to return them your most grateful acknowledgements for condescending to let you keep what is your own; and then all your acquaintance will love you, and praise you, and give you pretty things; and if you should at any time hereafter happen to transgress, your friends will all beg for you, and be security for your good behaviour; but if you are a naughty boy, and turn obstinate, and don't mind what your papa and mama say to you, but presume to think their commands (let them be what they will) unjust or unreasonable, or even seem to ascribe their present indulgence to any other motive than excess of moderation and tenderness, and pretend to judge for yourselves, when you are not arrived at the years of discretion, or capable of distinguishing between good and evil; then everybody will hate you, and say you are a graceless and undutiful child; your parents and masters will be obliged to whip you severely, and your friends will be ashamed to say anything in your excuse: nay, they will be blamed for your faults. See your work-see what you have brought the child to. If he had been well scourged at first for opposing our absolute will and pleasure, and daring to think he had any such thing as property of his own, he would not have had the impudence to repeat the crime."

"My dear child, we have laid the alternative fairly before you, you can't hesitate in the choice, and we doubt not you will observe such a conduct as your friends recommend."

Is not this a little ridiculous, when applied to three millions of as loyal and useful subjects as any in the British dominions, who have been only contending for their birth-right, and have now only gained, or rather kept, what could not, with common justice, or even policy, be denied them? But setting aside the manner, let me seriously consider the substance and subject of your letter. Can the honor of parliament be maintained by persisting in a