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 ecessary, 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 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 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 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, 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 apprize 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.

Far

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. 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, coolheaded, 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 at 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.

Is

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. 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 whoever 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 of 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 dissensions 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.