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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 bandmaid 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 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 fol. low; 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.
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 supposed to have weight with a sober man.
The main operative regulation of the act is to suspend the common law, and the statute Habeas Corpus, (the sole securities 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, gentlemen, 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. 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 ad. mitted 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 för 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 farther and farther at pleasure, on the same argument of mere expedience, on which it was first described. There is no equality among us; we are not fel. low-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, every man in the West Indies, every one inhabitant of three unoffending provinces on the continent, every person coming from the East Indies, every gentleman who has travelled for his health or education, every mariner who has navigated the seas, is, for no other offence, under a temporary proscription. Let any of these facts (now become presumptions of guilt) be proved against him, and the bare suspicion of the crown puts him out of the law. It is even by no means clear to me, whether the negative proof does not lie upon the person apprehended on suspicion, to the subversion of all justice.
I have not debated against this bill in its progress through the House ; because it would have been vain to oppose, and impossible to correct it. It is some time since I have been clearly convinced, that in the present state of things all opposition to any measures proposed by ministers, where the name of America appears, is vain and frivolous. You may be sure that I do not speak of my opposition, which in all circumstances must be so; but that of men of the greatest wisdom and authority in the nation. Everything proposed against America is supposed of course to be in favour of Great Britain. Good and ill success are equally admitted as reasons for persevering in the present methods. Several very prudent, and very well-intentioned, persons were of opinion, that during the prevalence of such dispositions, all struggle rather inflamed than lessened the distemper of the public councils. Finding such resistance to be considered as factious by most within-doors, and by very many without, I cannot conscientiously support what is against my opinion,