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I HAVE the honour of sending you the two last acts wbich have been passed with regard to the troubles in America. These acts are similar to all the rest which have been made on the same subject. They operate by the same principle; and they are derived from the very same policy. I think they complete the number of this sort of statutes to nine. It affords no matter for very pleasing reflection to observe that our subjects diminish as our laws increase. If I have the misfortune of differing with some of
fellow-citizens on this great and arduous subject, it is no small consolation to me that I do not differ from
you I am perfectly united. We are heartily agreed in our detestation of a civil war. We have ever expressed the most unqualified disapprobation of all the steps which have led to it, and of all those which tend to prolong it. And I have no doubt that we feel exactly the same emotions of grief and shame in all its miserable consequences; whether they appear, on the one side or the other, in the shape of victories or defeats, of captures made from the English on the continent, or from the English in these islands ; of legislative regulations which subvert the liberties of our brethren, or which undermine our own.
Of the first of these statutes (that for the letter of marque) I shall say Tittle. Exceptionable as it may be, and as I think it is in some particulars, it seems the natural, perhaps necessary, result of the measures we have taken, and the situ. ation we are in. The other (for a partial suspension of the Habeas Corpus) appears to me of a much deeper malignity. During its progress through the House of Commons, it has been amended, so as to express, more distinctly than at first it did, the avowed sentiments of those who framed it: and the main ground of my exception to it is, because it does express, and does carry into execution, purposes which appear to me so contradictory to all the principles, not only of the constitutional policy of Great Britain, but even of that species of hostile justice, which no asperity of war wholly ex. tinguishes in the minds of a civilized people.
It seems to have in view two capital objects; the first, to enable administration to confine, as long as it shall think proper, those whom that act is pleased to qualify by the name of pirates. Those so qualified I understand to be the commanders and mariners of such privateers and ships of war belonging to the colonies, as in the course of this unhappy contest may fall into the hands of the crown. They are therefore to be detained in prison, under the criminal description of piracy, to a future trial and ignominious punishment, whenever circumstances shall make it convenient to execute vengeance on them, under the colour of that odious and infamous offence.
To this first purpose of the law I have no small dislike; because the act does not (as all laws and all equitable transactions ought to do) fairly describe its object. The persons who make a naval war upon us, in consequence of the present troubles, may be rebels ; but to call and treat them as pirates, is confounding, not only the natural distinction of things, but the order of crimes : which, whether by putting them from a higher part of the scale to the lower, or from the lower to the higher, is never done without dangerously disordering the whole frame of jurisprudence. Though piracy
of the law, a less offence than treason; vet as both are, in effect, punished with the same death, the same forfeiture, and the same corruption of blood, I never would take from any fellow-creature whatever any sort of advartage which he may derive to his safety from the pity
may be, in the
of rankind, or to his reputation from their general feel. ings, by degrading his offence, when I cannot soften bis punishment. The general sense of mankind tells me, that those offences, which may possibly arise from mistaken virtue, are not in the class of infamous actions. Lord Coke, the oracle of the English law, conforms to that general sense where he says, that “those things which are of the highest criminality may be of the least disgrace.” The act prepares
' a sort of masked proceeding, not honourable to the justice of the kingdom, and by no means necessary for its safety. I cannot enter into it. If Lord Balmerino, in the last rebellion, bad driven off the cattle of twenty clans, I should have thought it would have been a scandalous and low juggle, utterly unworthy of the manliness of an English judicature, to have tried him for felony as a stealer of cows.
Besides, I must honestly tell you, that I could not vote for, or countenance in any way, a statute, which stigmatizes with the crime of piracy these men, whom an act of parliament had previously put out of the protection of the law. When the legislature of this kingdom had ordered all their ships and goods, for the mere new-created offence of exercising trade, to be divided as a spoil among the seamen of the navy,
- to consider the necessary reprisal of an unhappy, proscribed, interdicted people, as the crime of piracy, would have appeared, in any other legislature than ours, a strain of the most insulting and most unnatural cruelty and injustice. I assure you I never remember to have heard of anything like it in any time or country.
The second professed purpose of the act is, to detain in England for trial those who shall commit high treason in America:
That you may be enabled to enter into the true spirit of the present law, it is necessary, gentlemen, to apprize you, that there is an act, made so long ago as in the reign af Henry the Eighth, before the existence or thought of any English colonies in America, for the trial in this kingdom of treasons committed out of the realm. In the year 1769, parliament thought proper to acquaint the crown with their construction of that act in a formal address, wherein they entreated his Majesty to cause persons, charged with high treason in America, to be brought into this kingdom for trial. By this
act of Henry the Eighth, so construed and so applied, almost all that is substantial and beneficial in a trial by jury is taken away from the subject in the colonies. This is however say. ing too little; for to try a man under that act is, in effect, to condemn him unheard. A person is brought hither in the dungeon of a ship’s hold ; thence he is vomited into a dungeon on land ; loaded with irons, unfurnished with money, unsupported by friends, three thousand miles from all means of calling upon or confronting evidence, where no one local circumstance that tends to detect perjury, can possibly be judged of ;-such a person may be executed according to form, but he can never be tried according to justice.
J. therefore could never reconcile myself to the bill I send you; which is expressly provided to remove all inconveniences from the establishment of a mode of trial, which has ever appeared to me most unjust and most unconstitutional. Far from removing the difficulties which impede the execution of so mischievous a project, I would heap new difficulties upon it, if it were in my power. All the ancient, honest, juridical principles and institutions of England are so many clogs to check and retard the headlong course of violence and oppression. They were invented for this one good purpose, that what was not just should not be convenient. Convinced of this, I would leave things as I found them. The old, cool. headed, general law, is as good as any deviation dictated by present heat.
I could see no fair, justifiable expedience pleaded to favour this new suspension of the liberty of the subject. If the English in the colonies can support the independency, to which they have been unfortunately driven, I suppose nobody has such a fanatical zeal for the criminal justice of Henry the Eighth, that he will contend for executions which must be retaliated tenfold on his own friends; or who has conceived so strange an idea of English dignity, as to think the defeats in America compensated by the triumphs at Tyburn. If, on the contrary, the colonies are reduced to the obedience of the crown, there must be, under that authority, tribunals in the country itself, fully competent to administer justice on all offenders. But if there are not, and that we must suppose a thing so humiliating to our government, as rüat all this vast continent should unanimously concur in