"To Metriotes" is a letter to the editor, written by two authors using the pseudonyms Marcus Fabius and Marcus Curtius, which appeared in the Virginia Gazette on September 12, 1766. 
Article text, 12 September 1766
IF the dissatisfaction we feel that a Gentleman (against whom there lies something more than a suspicion of murder) hath been bailed by particular Judges of the Gen. Court, proceeds (as you justly surmise) from the etherial spirit of patriotism, it will be very difficult for you, facetious Sir, to cast a ridicule upon us on that account; as the love of one's country can never be thought a proper subject of derision by men of generous principles, and such alone we esteem arbiters whose censure or applause can give us pain or pleasure. Judge you then how much we must be affected by your animadversions.
If it is indeed true (and, generally speaking, we believe it not to be questioned) that we possess a greater share of patriotism than yourself and neighbours, we humbly presume to think you all might be better citizens if your proportion of it were augmented.
We differ from you in opinion with respect to our uneasiness, and (if you please) our clamours. We conceive the first too well founded, and the latter very proper, if front this single consideration that the publick desired, as much as we did, to see some reasons given for the late bailment; which reasons; though modestly demanded by queries (so undeservedly termed impudent and infamous) were, it seems; to be extorted only by what you miscall our clamours. Since the appearance of these, our uneasiness hath rather increased than subsided. When Gentlemen, such as Mr. Wythe and yourself, so highly interested in defending the measure we complain of, or clamour at, have so little to say in its support, the injustice done to the colony appears the more flagrant.
The Judges, you tell us (for you tell us what you please) have an indisputable right of bailing in all cases, where they think the accused merit such indulgence. This right, if theirs, must have been assumed, it is to be supposed (since it was never given them) as a sacred— shall I say —assumption—to be excercised for the good of the country in general, and for the ease of the subject in particular. Wherever these are incompatible, the general good ought to guide their decisions; but if that has been postponed to the ease and convenience of a particular, we think (were it for this alone) that our uneasiness is well founded. When an unhappy man (whose name, on account of his worthy family, I forbear to mention) was sent to the publick prison for the murder of his wife, the general good was, in that instance, properly considered; and, as he wanted great intercessours, he was not bailed. Why was a different conduct used in the present instance? You get over this and similar cases, by telling us that opinion is to determine when the power of bailing is to be exercised. Now we cannot but be uneasy, both to see so much left to opinion, and also that there hath been a difference of opinion, when there is none essential, between the matters offered to consideration. We humbly think that, by this time, some stability might be established among us, at least in criminal cases. This we have the greater right to expect, as it is acknowledged by those (who carry the power of our Judges as far as they may) that they have no power, beyond our act of Assembly, except from precedent in the King's Bench. Now, where people govern themselves by precedent, opinion is very little concerned in a decision. They have nothing to do but open their eyes, read, compare, and decide, according to the precedent. We are told that in the whole annals of the King's Bench a precedent is not to be found for the late bailment, whatever you may intend by your partially and unfairly recited case of the Lord Mohun.
We have said thus much, Sir, upon your own supposition that the Gen. Court has the plenary power of the King's Bench Court; but as it is a thing we only granted for a moment, and now deny, we persuade ourselves, if we betray greater ignorance in assigning our reasons for such denial than you charge us with, we may meet with Christian indulgence, in favour of that same etherial spirit which appears to you so chimerical, and to the rest of mankind so much the reverse. This is certain, that, had we all the knowledge of the best informed, we should be principally proud of it, as it would then be so much the more in our power, by invincible arguments, to preserve this country from a stretch of jurisdiction, which, if allowed, may probably, one day or other, form its greatest infelicity.
The General Court hath no power but what it owes to acts of Assembly; it is therefore in vain to ascribe to it the powers of the King's Bench, unless it receive them from acts of Assembly.
You will be pleased to refute this position before you shower down any further witticisms upon inferences deduced therefrom.
An act of the legislative body of this dominion unfortunately made the Members of the Privy Council Judges of a Supreme Court, yet this in a certain manner. If, in some important matters, a resemblance appears between the King's Bench and that Supreme or General Court, the origin of this resemblance must be sought for in the power which established the latter. If there appears any difference between them, it must be referred to the same authority.
There is, we apprehend, a material difference between these courts. That part of the power of the King's Bench which relates to bail in criminal cases (and which is rather deducible from ancient prerogative than any other origin) doth not appear, to us, to be given to particular Members of the G. C. but to the County Courts, and to them only, inasmuch as a case is bailable; probably because so critical a power as the above was thought as dangerous in the hands of the Privy Council, as liable to be misunderstood by Country Justices.
It may perhaps be esteemed absurd, by some people, that an inferiour Court should possess a power denied to a superiour. Some absurdities necessarily produce others. After the absurdity of appointing the Privy Counsellors Judges of Supreme Court, it was improper to allow that Court a power it might otherwise naturally enjoy. If the constitutors of our Courts found an absurdity unavoidable, they do not appear, at least to us, to have committed that of giving the Judges a privilege of bailing criminals according to their fancy or their friendship; that, in our constitution, would have been an absurdity indeed! As this doctrine may appear singular to those Gentlemen who are perpetually searching for Virginia in English law books, we beg them to consider whether the legislative body could not have formed the above regulation, was it thought expedient. To us their right of doing so seems self evident. If this be allowed, what remains is an inquiry whether they have, or have not, made such a regulation. As we are no lawyers (which some will think clear enough already) we can only judge plainly and simply of what we read in the act for directing the method of trying criminals for capital offences.
"When a criminal brought before an Examining Court may be legally bailed (such is the phrase) he is allowed twenty days in which to procure a bail." As this matter must be settled by the County Court, the law submits it to them, and makes no further provision."
"At the expiration of twenty days (the time limited for his continuance in the county prison) he is conveyed to the publick goal; if he cannot procure sureties; there he may be bailed, at any time before trail." If the law hath not declared by whom, the law is therein deficient; for it is not equally obvious that he is in such case to be bailed by the Judges of the Gen. C—, as it is that the County Court must in the first instance determine whether he be bailable."
"If the criminal is not bailable (of which the County Court must judge) he is conveyed forthwith to the publick prison, where he is to continue, until discharged by due course of law." This can hardly be understood to be by bailment (or the law would have authorized the Judges below to have granted such indulgence) but by a legal trial.
It behoves the County Courts to be very circumspect in the allowance or disallowance of bail, left they feel the ill consequences of an illegal decision in cases of that nature,
The County Court, which (as you say) allowed a murderer bail, ought to have been prosecuted. Our patriots might indeed have levelled their jury (as you ingeniously express it) at this measure, with propriety enough; because I see nothing to restrain Englishmen from scrutinizing, censuring, or applauding, any publick matter, as it may deserve. But I suppose they were restrained, at first, by a persuasion that the Judges of Goal Delivery would scarce have overlooked so blameable an indulgence in the County Court, and when afterwards they perceived their mistake, the subjection under which the press was kept deprived them of the power of publishing their sentiments.
When people in exalted stations will not properly excercise the powers they legally possess, there is the stronger reason why they never should be allowed to usurp unwarranted power.
Your arguments, in behalf of the late bailment, are altogether taken from the powers of a Court, founded on uncertain authority, in another country. This may be very proper perhaps, but to us it seems equally proper to cite the power exercised by the Council of the Rota at Rome. The aws of England are, I presume, in force in this country; there may possibly be some difference between the King's peculiar Court and the Supreme Court of this country. Where the acts constituting the latter give it an authority without directing the manner in which such authority is to be excercised, it may, we imagine, borrow a rule, suitable to its purpose, from any Court, or form one for itself. But this, we take the liberty of thinking, to be very different from a right of extending its jurisdiction.
Under what title for example, can the G. C. plead a power from prescription? The King's Bench hath we hear certain powers, and this in particular of discretionary bailing, from prescription. If the G.C. assumes powers from the King's Bench, Which the King's Bench holds only by prescription, it is aparent that it acts and regards itself as a Court whose rights are, in those instances, derived from prescription. I leave you to judge whether this be not usurpation. If our Supreme Court (or its members) takes authority to itself merely because such authority is excercised somewhere, we know of no authority with which it may not be invested. Would to Heaven a line were drawn, beyond which there might be no transgression!
After what is said above, we hardly need declare that we do not concur with you in opinion that a discretionary power of bailing can be safely lodged with particular members of the General Court; because they are, as you justly observe, the King's Counsellors. Distrust, the parent of security, is a political virtue of unspeakable utility. Had this virtue been properly excercised in some late Assemblies, it would have relieved you, Metriotes, and other Gentlemen, from the necessity you seem to think yourselves under not only of subverting all ideas of virtue and morality to justify a Gentleman lately deceased, and to metamorphose a notorious breach of the publick confidence into charity and munificence, but from that also of basely endeavouring to cast an odium on a Gentleman of inflexible integrity and virtue, whose sole crime was daring merely to divulge what the personage (thus shamefully bepraised) did not blush to commit. Vain, futile, and (to use your language) ridiculous efforts !
As necessary as distrust was in the case quoted, so necessary is it in the present case. Oaths are sacred things, very sacred indeed! but oaths have sometimes been found inadequate sanctions. We little expected to have heard a whisper of oaths from a Gentleman, who espoused the side you take in this controversy; we, for our parts, had determined that oaths might repose in silence, and still with they had never been mentioned.
The charge you bring against us, of ignorance in the laws, we frankly confess; and we as much lament that our abilities do not correspond with our publick spirit, as that your publick spirit corresponds not with your abilities. Yet the instances you give of our ignorance seem worthy of some indulgence.
An union in one person of the discordant and heterogeneous dignities of Privy Counsellor, Judge of the G. C. and Member of the intermediate body of the Legislature, forms so complex, so unaccountable a something, that it is quite possible we may have been mistaken in thinking such person inferiour to any thing but his Creator. An errour, with respect to one; of whom it is so difficult to say what it is or is not, may well be excused in persons who pretend to no infallibility. We know not, however (such is our ignorance, for which we beg forgiveness) that a Sheriff is obliged to know the dignity of his fellow subject before he demands his assistance; or that any subject here would be exempted, by his dignity, from a compliance with the summons. We know not a greater reversal of a judgment than to disregard entirely, and act counter to such judgment nor can we conceive, ingenious Metriotes, what use his Majesty can have for an Attorney General; when his Counsellor-Judges so faithfully discharge his office.
You think a dearth of intelligence will immediately follow Mr. Chiswell's appearance. Gentlemen (to be sure) will be precluded from the excercise of their understandings, totalement ebaubis ! Here, Sir, you are as cunning as you were witty before. Would you insinuate (to render us odious) that we are ravenous wolves, not to be fated but with the blood of Mr. Chiswell? We think the appearance or non-appearance of that Gentleman nothing to the purpose, nor are we his enemies. A Gentleman, in whose favour improper powers were we think assured, and dangerous lenity used, hears the name of Chiswell. We have been obliged to use it, when complaining of such proceedings. The extent of our enmity against him goes no further. Our views have a further object than his single punishment or acquittal. We are desirous of knowing whether some Virginians may massacre other Virginans (or sojourners among them) with impunity. Whether, if Metriotes were to assassinate us, or we Metriotes, there would be a repetition of the same good natured treatment in his or our own favour, or in favour of anybody in the like circumstances. This is what we wish to know, and is a thing in which we ought to be satisfied. Thought we might not wish to languish in a unisome, a pestilential goal, we (culpable of homicide) should assuredly expect to do so ourselves. But quere, would not Metriotes meet with greater indulgence, more especially if he was happy enough to find an agent as sedulous, as devoted, as Mr. W—s, and J—s equally disposed to hearken to him; as those were who so precipitately discharged C. C. from custody? We begin to feel the same uneasiness in our fingers as that of which you lately complained to the publick, and are therefore very abruptly, as you see,
Your humble servants,
MARCUS FABIUS. MARCUS CURTIUS.
- Virginia Gazette (Purdie and Dixon), To METRIOTES., September 12, 1766, 3.