profane herd of those vulgar and mechanical politicians who have no
place among us: a sort of people who think that nothing exists but what
is gross and material,--and who, therefore, far from being qualified to
be directors of the great movement of empire, are not fit to turn a
wheel in the machine. But to men truly initiated and rightly taught,
these ruling and master principles, which in the opinion of such men as
I have mentioned have no substantial existence, are in truth everything,
and all in all. Magnanimity in politics is not seldom the truest wisdom;
and a great empire and little minds go ill together. If we are conscious
of our situation, and glow with zeal to fill our place as becomes our
station and ourselves, we ought to auspicate all our public proceedings
on America with the old warning of the Church, _Sursum corda!_ We ought
to elevate our minds to the greatness of that trust to which the order
of Providence has called us. By adverting to the dignity of this high
calling our ancestors have turned a savage wilderness into a glorious
empire, and have made the most extensive and the only honorable
conquests, not by destroying, but by promoting the wealth, the number,
the happiness of the human race. Let us get an American revenue as we
have got an American empire. English privileges have made it all that it
is; English privileges alone will make it all it can be.
In full confidence of this unalterable truth, I now (_quod felix
faustumque sit!_) lay the first stone of the Temple of Peace; and I move
you,--
"That the colonies and plantations of Great Britain in North America,
consisting of fourteen separate governments, and containing two millions
and upwards of free inhabitants, have not had the liberty and privilege
of electing and sending any knights and burgesses, or others, to
represent them in the high court of Parliament."
Upon this resolution the previous question was put and carried: for the
previous question, 270; against it, 78.
* * * * *
As the propositions were opened separately in the body of the speech,
the reader perhaps may wish to see the whole of them together, in the
form in which they were moved for.
"MOVED,
"That the colonies and plantations of Great Britain in North America,
consisting of fourteen separate governments, and containing two millions
and upwards of free inhabitants, have not had the liberty and privilege
of electing and sending any knights and burgesses, or others, to
represent them in the high court of Parliament."
"That the said colonies and plantations have been made liable to, and
bounden by, several subsidies, payments, rates, and taxes, given and
granted by Parliament, though the said colonies and plantations have not
their knights and burgesses in the said high court of Parliament, of
their own election, to represent the condition of their country; _by
lack whereof they have been oftentimes touched and grieved by subsidies,
given, granted, and amended to, in the said, court, in a manner
prejudicial to the common wealth, quietness, rest, and peace of the
subjects inhabiting within the same_."
"That, from the distance of the said colonies, and from other
circumstances, no method hath hitherto been devised for procuring a
representation in Parliament for the said colonies."
"That each of the said colonies hath within itself a body, chosen, in
part or in the whole, by the freemen, freeholders, or other free
inhabitants thereof, commonly called the General Assembly, or General
Court, with powers legally to raise, levy, and assess, according to the
several usages of such colonies, duties and taxes towards defraying all
sorts of public services."[30]
"That the said general assemblies, general courts, or other bodies
legally qualified as aforesaid, have at sundry times freely granted
several large subsidies and public aids for his Majesty's service,
according to their abilities, when required thereto by letter from one
of his Majesty's principal Secretaries of State; and that their right to
grant the same, and their cheerfulness and sufficiency in the said
grants, have been at sundry times acknowledged by Parliament."
"That it hath been found by experience, that the manner of granting the
said supplies and aids by the said general assemblies hath been more
agreeable to the inhabitants of the said colonies, and more beneficial
and conducive to the public service, than the mode of giving and
granting aids and subsidies in Parliament, to be raised and paid in the
said colonies."
"That it may be proper to repeal an act, made in the seventh year of the
reign of his present Majesty, intituled, 'An act for granting certain
duties in the British colonies and plantations in America; for allowing
a drawback of the duties of customs, upon the exportation from this
kingdom, of coffee and cocoa-nuts, of the produce of the said colonies
or plantations; for discontinuing the drawbacks payable on China earthen
ware exported to America; and for more effectually preventing the
clandestine running of goods in the said colonies and plantations.'"
"That it may be proper to repeal an act, made in the fourteenth year of
the reign of his present Majesty, intituled, 'An act to discontinue, in
such manner and for such time as are therein mentioned, the landing and
discharging, lading or chipping, of goods, wares, and merchandise, at
the town and within the harbor of Boston, in the province of
Massachusetts Bay, in North America.'"
"That it may be proper to repeal an act, made in the fourteenth year of
the reign of his present Majesty, intituled, 'An act for the impartial
administration of justice, in the cases of persons questioned for any
acts done by them, in the execution of the law, or for the suppression
of riots and tumults, in the province of the Massachusetts Bay, in New
England.'"
"That it may be proper to repeal an act, made in the fourteenth year of
the reign of his present Majesty, intituled, 'An act for the better
regulating the government of the province of the Massachusetts Bay, in
New England.'"
"That it may be proper to explain and amend an act, made in the
thirty-fifth year of the reign of King Henry the Eighth, intituled, 'An
act for the trial of treasons committed out of the king's dominions.'"
"That, from the time when the general assembly, or general court, of any
colony or plantation in North America, shall have appointed, by act of
assembly duly confirmed, a settled salary to the offices of the chief
justice and other judges of the superior courts, it may be proper that
the said chief justice and other judges of the superior courts of such
colony shall hold his and their office and offices during their good
behavior, and shall not be removed therefrom, but when the said removal
shall be adjudged by his Majesty in council, upon a hearing on complaint
from the general assembly, or on a complaint from the governor, or the
council, or the house of representatives, severally, of the colony in
which the said chief justice and other judges have exercised the said
offices."
"That it may be proper to regulate the courts of admiralty or
vice-admiralty, authorized by the 15th chapter of the 4th George the
Third, in such a manner as to make the same more commodious to those who
sue or are sued in the said courts; _and to provide for the mere decent
maintenance of the judges of the same_."
FOOTNOTES:
[18] The act to restrain the trade and commerce of the provinces of
Massachusetts Bay and New Hampshire, and colonies of Connecticut and
Rhode Island and Providence Plantation, in North America, to Great
Britain, Ireland, and the British Islands in the West Indies; and to
prohibit such provinces and colonies from carrying on any fishery on the
banks of Newfoundland, and other places therein mentioned, under certain
conditions and limitations.
[19] Mr. Rose Fuller.
[20] "That when the governor, council, and assembly, or general court,
of any of his Majesty's provinces or colonies in America shall _propose_
to make provision, _according to the condition, circumstances_, and
_situation_ of such province or colony, for contributing their
_proportion_ to the _common defence_, (such _proportion_ to be raised
under the authority of the general court or general assembly of such
province or colony, and disposable by Parliament,) and shall _engage_ to
make provision, also for the support of the civil government and the
administration, of justice in such province or colony, it will be
proper, _if such proposal shall be approved by his Majesty and the two
Houses of Parliament_, and for so long as such provision shall be made
accordingly, to forbear, in _respect of such province or colony_, to
levy any duty, tax, or assessment, or to impose any farther duty, tax,
or assessment, except only such duties as it may be expedient to
continue to levy or to impose for the regulation of commerce: the net
produce of the duties last mentioned to be carried to the account of
such province or colony respectively."--Resolution moved by Lord North
in the Committee, and agreed to by the House, 27th February, 1775.
[21] Mr. Glover.
[22] The Attorney-General.
[23] Mr. Rice.
[24] Lord North.
[25] Journals of the House, Vol. XXV.
[26] Journals of the House, Vol. XXVII.
[27] Ibid.
[28] The Solicitor-General informed Mr. B., when the resolutions were
separately moved, that the grievance of the judges partaking of the
profits of the seizure had been redressed by office; accordingly the
resolution was amended.
[29] Lord North.
[30] The first four motions and the last had the previous question put
on them. The others were negatived.
The words in Italics were, by an amendment that was carried, left out of
the motion; which will appear in the journals, though it is not the
practice to insert such amendments in the votes.
A
LETTER
TO
JOHN FARR AND JOHN HARRIS, ESQRS.,
SHERIFFS OF THE CITY OF BRISTOL,
ON THE
AFFAIRS OF AMERICA.
1777.
Gentlemen,--I have the honor of sending you the two last acts which 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 my fellow-citizens on
this great and arduous subject, it is no small consolation to me that I
do not differ from you. With 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 on 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 little. 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 situation 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
extinguishes 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 color 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 may be, in the eye of the law, a _less_
offence than treason, yet, 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 advantage
which he may derive to his safety from the pity of mankind, or to his
reputation from their general feelings, by degrading his offence, when I
cannot soften his 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 honorable 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, had 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 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 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, 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 favor 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 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 vigor, 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
rancor, 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? Remember, 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? 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! this is not instruction.
If anything 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 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 vengeance
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 dissension 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 honor, 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.