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when Mr. Ware succeeded him, he endorsed this writ over to Mr. Ware; so that these writs are negotiable from one officer to another; and so your Honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of Sabbath-day acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied, Yes. Well then, said Mr. Ware, I will show you a little of my power. I command you to permit me to search your house for uncustomed goods. And went on to search his house from the garret to the cellar; and then served the constable in the same manner. But to show another absurdity in this writ; if it should be established, I insist upon it, every person by the 14 Charles II. has this power as well as custom-house officers. words are, 'It shall be lawful for any person or persons authorized,' &c. What a scene does this open! Every man, prompted by revenge, ill humor, or wantonness, to inspect the inside of his neighbor's house, may get a writ of assistance. Others will ask it from self-defence; one arbitrary exertion will provoke another, until society be involved in tumult and in blood.

The

"Again, these writs are not returned. Writs in their nature are temporary things. When the purposes for which they are issued are answered, they exist no more; but these live forever; no one can be called to account. Thus reason and the constitution are both against this writ. Let us see what authority there is for it. Not more than one instance can be found of it in all our law-books; and that was in the zenith of arbitrary power, namely, in the reign of Charles II., when star-chamber powers were pushed to extremity by some ignorant clerk of the exchequer. But had this writ been in any book whatever, it would have been illegal. All precedents are under the control of the principles of law. Lord Talbot says it is better to observe these than any precedents, though in the House of Lords, the last resort of the subject. No Acts of Parliament can establish such a writ; though it should be made in the very words of the petition, it would be void. An act against the constitution is void. (vid. Viner.) But these prove no more than what I before observed, that special writs may be granted on oath and probable suspicion. The act of 7 & 8 William III. that the officers of the plantations shall have the same powers, &c. is confined to this sense; that an officer should show probable ground; should take his oath of it; should do this before a magistrate; and that such magistrate, if he think proper, should issue a special warrant to a constable to search the places. That of 6 Anne can prove no more."

B.

(page 226.)

The following abstract, taken from one of Mr. Adams's note books, in addition to the interest attaching to the cause itself, may serve as a specimen of his manner of getting up his cases for argument:

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Case of Michael Corbet and others, charged with the murder of Lieutenant Panton, on the high seas.

28 Hen. VIII. c. 15. "FOR PIRATES." "Where traitors, pirates, thieves, robbers, murderers and confederates upon the sea, many times escaped unpunished, because the trial of their offences hath heretofore been ordered, judged, and determined before the Admiral, or his Lieutenant or Commissary, after the course of the civil laws, the nature whereof is, that before any judgment of death can be given against the offenders, either they must plainly confess their offences, (which they will never do without torture or pains,) or else their offences be so plainly and directly proved by witness indifferent, such as saw their offences committed, &c. for reformation whereof, be it enacted, That all treasons, felonies, robberies, murders and confederacies hereafter to be committed in or upon the sea, or in any other haven, river, creek, or place, where the Admiral or Admirals have or pretend to have the jurisdiction, authority, or power, shall be inquired, tried, heard, determined, and judged, in such shires and places in the realm as shall be limited by the King's commission, &c., as if the offence had been done upon the land, &c. after the common course of the laws of this realm." "Sect. 2. To inquire by the oaths of twelve good and lawful men, &c. in the shire limited in the commission."

11 & 12 William III. c. 7. AN ACT for the more effectual suppression of piracy.

"All piracies, felonies, and robberies, committed in or upon the sea, or in any haven, river, creek, or place, where the Admiral or Admirals have power, authority, or jurisdiction, may be examined, inquired of, tried, heard, determined, and adjudged, in any place at sea, or upon the land, in any of his Majesty's Islands, Plantations, Colonies, dominions, forts, or factories, to be appointed for that purpose by the King's commission, &c. under the great seal of England, or the seal of the Admiralty of England, directed to all or any of the Admirals, Vice-Admirals, Rear-Admirals, Judges of Vice-Admiralties, or commanders of any of his Majesty's ships of war, and also to all or any such person or persons as his majesty shall please to appoint, &c. which said commissioners shall have full power, jointly or severally, by warrant under the hand and seal of them, or any one of them, to commit to safe custody any person, &c. against whom information of piracy, robbery, or felony, upon the sea, shall be given upon oath, &c. and to call and assemble a Court of Admiralty, on shipboard, or upon the land, &c. and such persons so assembled shall have full authority, according to the course of the admiralty, to issue warrants for bringing

any persons accused of piracy or robbery, before them to be tried, &c. to summon and examine witnesses, &c. and to do all things necessary for the hearing and final determination of any case of piracy, robbery, and felony; and to give sentence and judgment of death, and to award execution, according to the civil law and the methods and rules of the admiralty."

This statute is the foundation of the special commission, and of the present proceedings, and upon it a question has been made by Mr. Otis, whether the prisoners have not a right to a jury? He says that Magna Charta, in a case of life at least, must be expressly repealed, not by implication or construction only; and that in England a jury is summoned every day for the trial of such offences committed at sea. But I think that the statute of 28 Henry VIII. before cited, explains this difficulty; and this case seems to be but one instance among many others of the partial distinctions made between British subjects at home and abroad. The civil law, the course of the admiralty, and the methods and rules of the admiralty, will be construed, to take away the benefit of a jury.

[1 Mr. Otis, from his first retainer in the cause, has been very sanguine to move for a jury. He has mentioned his resolution in all companies, and last week, at Plymouth, he mentioned it to the Lieutenant-Governor, and the rest of the judges. Mr. Fitch, happening to hear of our design to move for a jury went to rummaging up Acts of Parliament, to satisfy himself, and found the 4 of George, c. 11: An act for the further preventing of robbery, &c. and for declaring the law upon some points relating to pirates. In the seventh section of this statute, "It is hereby declared, that all and every person and persons, who have committed or shall commit any offence or offences, for which they ought to be adjudged, deemed, and taken to be pirates, felons, or robbers, by an act made in the Parliament holden in the 11 & 12 years of William III. intituled An Act for the more effectual suppression of piracy,' may be tried and judged for every such offence, in such manner and form as in and by an act 28 Henry VIII. is directed and appointed for the trial of pirates." This statute, Fitch discovered to Sewall, and Sewall showed it to the Governor and Lieutenant-Governor and the rest of the court, the first morning of the court's sitting, in the council chamber. They were all struck and surprized, and the Lieutenant-Governor observed that this statute cleared up what had always to him appeared a mystery. In the State trials, vol. 6, 156, the trial of Stede Bonnet, before Judge Trott, at Carolina, 1718, 5 George L., it being the next year after the statute, Bonnet had a grand and petit jury.

In the council chamber, the court, however, agreed that they would go into the Court House, and take the oaths, &c. and then the court would publicly propose a jury. This was done, and the Statutes 28 Henry VIII. 11 & 12 William III. and 4 George I. were read, and then the commission, &c.; and then the Governor proposed to adjourn the court to Thursday, and to hear counsel this afternoon, in the council chamber, upon the subject of a jury.

In the afternoon we accordingly attended, and a difficulty was started by the Lieutenant-Governor about the venires, whether they should be directed to the sheriff, to summon a jury, as in England, or whether the venires should issue in any manner analogous to the laws of this Province relative to this subject? In

This portion of narrative, marked in brackets seems to have been afterwards appended, by way of note to the proceedings in the case.

the afternoon we had the argument, and the whole court seemed convinced that a jury must be had. The Governor, indeed, talked that they might be sent to England for trial, &c.

But the next morning, when Mr. Otis was to have prepared and produced a venire facias to the sheriff to return a jury, we found all aback. The whole court, advocate-general Mr. Sewall, and Mr. Fitch, all of opinion that we had been all wrong, and that a jury could not be had. The Lieutenant-Governor had, in the course of his lucubrations, discovered this great secret, that, by law, two ways of trial are pointed out and provided, one by 28 Henry VIII., the other by 11 & 12 of William III., and that his Majesty may grant a commission in pursuance of either. That this commission was expressly limited to 11 & 12 William III., and therefore could not proceed according to 28 Henry VIII.]

But the first question that is to be made, according to my opinion, is, whether impresses in any cases are legal? For if impresses are always illegal, and Lieutenant Panton acted as an impress officer, Michael Corbet and his associates had a right to resist him, and, if they could not otherwise preserve their liberty, to take away his life. His blood must lie at his own door, and they be held guiltless. Nay, I think that impresses may be allowed to be legal, and yet Corbet might have a right to resist. To be more particular, when I say impresses may be legal, I mean that the Lieutenant or other officer who impresses, may not be liable to any action of false imprisonment, at the suit of the party, or to any indictment, at the suit of the Crown, for an assault or riot; the custom may be admitted to extend so far, and yet it will not follow that the seaman has not a right to resist, and keep himself out of the officer's power, if he can. And whatever may be said of the antiquity of the custom, &c. it is very remarkable that no statute has ever been made to establish or even to approve it, and no single judgment of any court of law can be found in favor of it. It is found in the commissions of the admiralty, and in warrants from the admiralty, but nowhere else. However the general question concerning the legality of impresses may be determined, I humbly conceive it clear that in America they are illegal, and that by a particular statute. I mean 6 Anne, c. 37, s. 9. "No mariner or other person, who shall serve on board, or be retained to serve on board any privateer or trading ship or vessel, that shall be employed in any part of America, nor any mariner or other person being on shore in any part thereof, shall be liable to be impressed or taken away, or shall be impressed or taken away, by any officer or officers, of or belonging to any of her Majesty's ships of war, empowered by the Lord-High-Admiral, or any other person whatsoever, unless such mariner shall have deserted, &c. upon pain that any officer or officers so impressing or taking away, or causing to be impressed or taken away, any mariner or other person, contrary to the tenor and true meaning of this act, shall forfeit, to the master or owner or owners, of any such ship or vessel, twenty pounds for every man he or they shall so impress or take, to be recovered, with full costs of suit, in any court within any part of her Majesty's dominions."

This statute is clear and decisive, and if it is now in force, it places the illegality of all impresses in America beyond controversy. No mariner, on board any trading vessel, in any part of America, shall be liable to be impressed, or shall be impressed, by any officer, empowered by the Lord-Admiral or any other person. If, therefore, this statute is now in force, all that Lieutenant Panton

did on board the vessel was tortious and illegal; he was a trespasser from the beginning; a trespasser in coming on board, and in every act that he did, until he received the mortal, fatal wound. He was a trespasser in going down below, but especially in firing a pistol among the men in the fore peak. It is said that the Lieutenant with his own hand discharged this pistol directly at Michael Corbet, but the ball missed him, and wounded the man, who was next him, in the arm. This, therefore, was a direct commencement of hostilities; it was an open act of piracy, and Corbet and his associates had a right, and it was their duty, to defend themselves. It was a direct attempt upon their lives, and surely these unhappy persons had a right to defend their lives. No custom-house officer, no impress-officer, has a right to attempt life. But it seems that a second pistol was discharged, and wounded Corbet in his cheek, with powder, before the fatal blow was struck. What could Corbet expect? Should he stand still and be shot, or should he have surrendered to a pirate? Should he have surrendered to the impress?

But it has been made a question, whether this statute of 6 Anne is now in force? It has been reported, as the opinion of Sir Dudley Rider and Sir John Strange, that this statute expired with the war of Queen Anne. These are venerable names; but their opinions are opinions only of private men, and there has been no judicial decision to this purpose in any court of law, and I trust never will be. Their opinions were expressed so very concisely, that there is great room to question whether they were given upon the whole act, or only on some particular clause in it. Supposing these opinions to extend to the whole act, I have taken pains to discover what reasons can be produced in support of them, and I confess I can think of none. There is not the least color for such an opinion. On the contrary, there is every argument for supposing the act perpetual.

1. It is a good rule to consider the title of an act, in order to ascertain its construction and operation in all respects. The title of this is, " An act for the encouragement of the trade to America." Encouragement of the trade to America, is the professed object, end, and design of this law. Is this trade only valuable in time of war? If the trade to America existed and was carried on only in time of war, the act made for the encouragement of it must expire when the trade expired, at the end of the war. But the trade did not expire with the war, but continued after it, and therefore the encouragement given it by this act continued and survived too. This is of equal importance in peace as in war, and there is stronger reason why it should be encouraged, by exempting seamen from impresses, in peace than in war, because there is not the same necessity for impressing seamen in peace as there is in war.

2. The preamble furnishes another argument to prove the act perpetual. "For advancement of the trade of her Majesty's kingdom of Great Britain, to and in the several parts of America." This is one end of this law. Is not this end as beneficial and important in peace as in war? Has there been a year, a day, an hour, since 1707, when this act was made, when the trade of Great Britain to and in the several parts of America was of less consequence to the nation than it was at that time? Surely the advancement of the British American trade is a perpetual object. It is no temporary object or expedient; it has lasted these sixty years, and I hope will last a thousand longer.

3. For the increase of shipping and of seamen, for the purposes mentioned H 2

VOL. II.

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