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That you may be enabled to enter into the true spirit of the present law, it is necessary, Gentlemen, to apprise you that there is an Act, made so long ago as in the reign of Henry the Eighth, before the existence or thought of any English colonies in America, for the trial in this kingdom of treason 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, saying 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.
I 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
6 The purpose of this old statute was to provide for the trial and punishment, in England, of crimes committed at sea, and which must be tried and punished in England, or not at all. To apply this Act to the colonists was indeed a monstrous perversion.
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 that all this vast continent should unanimously concur in thinking that no ill fortune can convert resistance to the royal authority into a criminal act, we may call the effect of our victory peace, or obedience, or what we will, but the war is not ended ; the hostile mind continues in full vigour, and it continues under a worse form. If your peace be nothing more than a sullen pause from arms, if their quiet be nothing but the meditation of revenge, where smitten pride smarting from its wounds festers into new rancour, neither the Act of Henry the Eighth nor its handmaid of this reign will answer any wise end of policy or justice. For, if the bloody fields which they saw and felt are not sufficient to subdue the reason of America, (to use the expressive phrase of a great lord in office, ) it is not the judicial slaughter which is made in another hemisphere against their universal sense of justice that will ever reconcile them to the British government.
I take it for granted, Gentlemen, that we sympathize in a proper horror of all punishment further than as it serves for an example. To whom, then, does the example of an execution in England for this American rebellion apply? Temember, you are told every day, that the present is a contest between the two countries, and that we in England are at war for our own dignity against our rebellious children. Is this true? If it be, it is surely among such rebellious children that examples for disobedience should be made, to be in any degree instructive : for who ever thought of teaching parents their duty by an example from the punishment of an undutiful son 2 As well might the execution of a fugitive negro in the plantations be considered as a lesson to teach masters humanity to their slaves. Such executions may indeed satiate our revenge; they may harden our hearts, and puff us up with pride and arrogance. Alas Unis is not instruction.
If any thing can be drawn from such examples by a parity of the case, it is to show how deep their crime and how heavy their punishment will be, who shall at any time dare to resist a distant power actually disposing of their property without their voice or consent to the disposition, and overturning their franchises without charge or hearing. God forbid that England
7 Tyburn was a place in or near London where persons convicted of capital crimes were executed.
should ever read this lesson written in the blood of any of her offspring ! War is at present carried on between the King's natural and foreign troops, on one side, and the English in America, on the other, upon the usual footing of other wars; and accordingly an exchange of prisoners has been regularly made from the beginning. If, notwithstanding this hitherto equal procedure, upon some prospect of ending the war with success (which however may be delusive) administration prepares to act against those as traitors who remain in their hands at the end of the troubles, in my opinion we shall exhibit to the world as indecent a piece of injustice as ever civil fury has produced. If the prisoners who have been exchanged, have not by that exchange been virtually pardoned, the cartel (whether avowed or understood) is a cruel fraud; for you have received the life of a man, and you ought to return a life for it, or there is no parity or fairness in the transaction. If, on the other hand, we admit that they who are actually exchanged are pardoned, but contend that you may justly reserve for vengence those who remain unexchanged, then this unpleasant and unhandsome consequence will follow, -that you judge of the delinquency of men merely by the time of their guilt, and not by the heinousness of it; and you make fortune and accidents, and not the moral qualities of human action, the rule of your justice. These strange incongruities must ever perplex those who confound the unhappiness of civil dissention with the crime of treason. Whenever a rebellion really and truly exists, which is as easily known in fact as it is difficult to define in words, government has not entered into such military conventions, but has: ever declined all intermediate treaty which should put rebels in possession of the law of nations with regard to war. Commanders would receive no benefits at their hands, because they could make no return for them. Who has ever heard of capitulation, and parole of honour, and exchange of prisoners in the late rebellions in this kingdom? The answer to all demands of that sort was, “We can engage for nothing; you are at the King's pleasure.” We ought to remember that, if our present enemies be in reality and truth rebels, the King's generals have no right to release them upon any conditions whatsoever; and they are themselves answerable to the law, and as much in want of a pardon, for doing so, as the rebels whom they release. Lawyers, I know, cannot make the distinction for which I contend; because they have their strict rule to go by. But legislators ought to do what lawyers cannot; for they have no other rules to bind them but the great principles of reason and equity, and the general sense of mankind. These they are bound to obey and follow, and rather to enlarge and enlighten law by the liberality of legislative reason than to fetter and bind their higher capacity by the narrow constructions of subordinate, artificial justice. If we had adverted to this, we never could consider the convulsions of a great empire, not disturbed by a little disseminated faction, but divided by whole communities and provinces, and entire legal representatives of a people, as fit matter of discussion under a commission of Oyer and Terminer.” It is as opposite to reason and prudence as it is to humanity and justice. This Act, proceeding on these principles, that is, preparing to end the present troubles by a trial of one sort of hostility under the name of piracy, and of another by the name of treason, and executing the Act of Henry the Eighth according to a new and unconstitutional interpretation, I have thought evil and dangerous, even though the instruments of effecting such purposes had been merely of a neutral quality. But it really appears to me that the means which this Act employs are at least as exceptionable as the end. Permit me to open myself a little upon this subject; because it is of importance to me, when I am obliged to submit to the power without acquiescing in the reason of an Act of legislature, that I should justify my dissent by such arguments as may be sup. posed to have weight with a sober man. The main operative regulation of the Act is to suspend tha Common Law and the statute Habeas Corpus (the sole securi, ties either for liberty or justice) with regard to all those who have been out of the realm, or on the high seas, within a given time. The rest of the people, as I understand, are to continue as they stood before. I confess, Gentleman, that this appears to me as bad in the principle, and far worse in its consequence, than an universal suspension of the Habeas Corpus Act; and the limiting qualification, instead of taking out the sting, does in my humble opinion sharpen and envenom it to a greater degree. Liberty, if I understand it at all, is a general principle, and the clear right of all the subjects within the realm, or of none. Partial freedom seems to me a most invidious mode of slavery. But, unfortunately, it is the kind of slavery the most easily admitted in times of civil discord: for parties are but too apt to forget their own future safety in their desire of sacrificing their enemies.
8 That is, authority to hear and determine legal causes; oyer being an old Norman-French word meaning to hear.
People without much difficulty admit the entrance of that injustice of which they are not to be the immediate victims. In times of high proceeding it is never the faction of the predominant power that is in danger; for no tyranny chastises its own instruments. It is the obnoxious and the suspected who want the protection of law; and there is nothing to bridle the partial violence of State factions but this, – “that, whenever an Act is made for a cessation of law and justice, the whole people should be universally subjected to the same suspension of their franchises.” The alarm of such a proceeding would then be universal. It would operate as a sort of call of the nation. It would become every man's immediate and instant concern to be made very sensible of the absolute necessity of this total eclipse of liberty. They would more carefully advert to every renewal, and more powerfully resist it. These great determined measures are not commonly so dangerous to freedom. They are marked with too strong lines to slide into use. No plea, nor pretence, of inconvenience or evil example (which must in their nature be daily and ordinary incidents) can be admitted as a reason for such mighty operations. But the true danger is when liberty is nibbled away, for expedients, and by parts. The Habeas Corpus Act supposes, contrary to the genius of most other laws, that the lawful magistrate may see particular men with a malignant eye, and it provides for that identical case. But when men, in particular descriptions, marked out by the magistrate himself, are delivered over by Parliament to this possible malignity, it is not the Habeas Corpus that is occasionally suspended, but its spirit that is mistaken, and its principle that is subverted. Indeed, nothing is security to any individual but the common interest of all. This Act, therefore, has this distinguished evil in it, that it is the first partial suspension of the Habeas Corpus that has been made. The precedent, which is always of very great importance, is now established. For the first time a distinction is made among the people within this realm. Before this Act, every man putting his foot on English ground, every stranger owing only a local and temporary allegiance, even negro slaves who had been sold in the colonies and under an Act of Parliament, became as free as every other man who breathed the same air with them. Now a line is drawn, which may be advanced further and further at pleasure, on the same argument of mere expedience on which it was first described. There is no equality among us; we are not fellow-citizens, if the mariner who lands on the quay does not rest on as firm legal ground as the merchant who sits in his counting-house. Other laws may injure the community; this dissolves it. As things now stand,