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Thirdly, it does not give satisfaction to the complaint of the colonies. They complain that they are
taxed without their consent. You answer, that you
will fix the sum at which they shall be taxed. That
is, you give them the very grievance for the remedy.
? ? ? ? SPEECH ON CONCILIATION WITH AMERICA. 173
You tell them, indeed, that you will leave the mode
to themselves. I really beg pardon; it gives me pain
to mention it; but you must be sensible that you will
not perform this part of the compact. For suppose'the. colonies were to lay the duties which furnished
their contingent upon' the importation of your manufactures; you know you would never suffer such a
tax to be laid. You know, -too, that you would not
suffer many other modes of taxation. So that, when
you come to'explain yourself, it -will be found that
you will. neither leave to themselves the quantum nor
the mode, nor indeed anything. The whole is delusion, from one end to the other.
Fourthly, this method: of ransom by auction, unless
it be universally accepted, will plunge you into great
and inextricable difficulties. In what'year of our
Lord are the proportions of payments to be settled?
To say nothing of the impossibility that colony agents
should have general powers of taxing the colonies at
their discretion, consider, I implore you, that the
communication by special messages and orders between. these agents and their constituents on each variation of the case, when the parties come to contend together, and to dispute on their relative proportions,
will be a matter of delay, perplexity, and confusion,
that never can have an end.
If all the colonies do not appear at the outcry, what
is the condition of those assemblies who offer, by
themselves or. their agents, to tax themselves up to
your ideas of their proportion? The refractory colonies, who refuse all composition, will remain taxed
only to your old impositions, which, however grievous
in principle, are trifling as to production. The obedient colonies in this scheme are heavily taxed; the
? ? ? ? 174 SPEECH ON CONCILIATION WITH AMERICA. refractory remain unburdened. What will you do? Will you lay new and heavier taxes by Parliament
on the disobedient? Pray consider in what way you can do it. You are perfectly convinced, that, in the way of taxing, you can do nothing but at the ports Now suppose it is Virginia that refuses to appear at your auction, while Maryland and North Carolina bid handsomely:for their ransom, and are taxed to your; quota, how will you put these colonies on a par'? Will you tax the tobacco of Virginia? If you do,
you give its death-wound to your English revenue at
home, and to one of the very greatestarticles of your
own foreign trade. If you tax the import of that rebellious colony, what do you tax but your own manufactures, or the goods of some other obedient and already well-taxed colony? Who has said one word
on this labyrinth of detail, which bewilders you more
and more as you enter into it? Who has presented,
who can present, you with a clew to lead you out of
it? I think, Sir, it is impossible that you should not
recollect that the colony bounds are so implicated in
one another (you know it by your other experiments
in the bill for prohibiting the New England fishery
that you can lay no possible restraints on almost any
of them which may not be presently eluded, if you do
not confound the innocent with the guilty, and burden those whom upon every principle you ought to
exonerate. He must be grossly ignorant of America,
who thinks, that, without falling into this confusion
of all rules of equity and policy, you can restrain any
single colony, especially Virginia and Maryland, the
central, and most important of them all.
Let it also be considered, that either in the present confusion you settle a permanent'contingent,
? ? ? ? SPEECH ON CONCILIATION WITH AMERICA. 175 which will and must be trifling, and then you have no effectual revenue, -or you change the quota at every exigency, and then on every new repartition you will have a new quarrel.
Reflect besides, that, when you have fixed a quota
for every colony, you have not provided for prompt
and punctual payment. Suppose one, two, five, ten
years' arrears. You cannot issue a Treasury extent
against the failing colony. You must make new
Boston port bills, new restraining laws, new acts for
dragging men to England for trial. You must send
out new fleets, new armies. . All is to begin again.
From this day forward the empire is never to know
an hour's tranquillity. , An intestine fire will be kept
alive in the bowels of the colonies, which one time or
other must consume this whole empire. I allow, indeed, that the Empire of Germany raises her revenue and her troops by quotas and contingents; but the
revenue of the Empire and the army of the Empire. is
the worst revenue and the worst army in the world.
Instead of a standing revenue, you will therefore:have a perpetual quarrel. Indeed, the noble lord'Who proposed this project of a ransom by auction seemed himself to be of that opinion. His project
was rather designed for breaking the union of the
colonies than for establishing a revenue. He confessed he apprehended that his proposal would not
be to their taste. I say, this scheme of disunion seems,
to be at the bottom of the project; for I will not suspect that the noble lord meant nothing but merely
to delude the nation by an airy phantom which he
never intended to realize. But whatever his views
may be, as I propose the peace and union of the
colonies as the very foundation of my plan, it can
? ? ? ? 176 SPEECH ON CONCILIATION WITH AMERICA.
not accord with one whose foundation is perpetual
discord.
Compare the two. This I offer to give you is plain
and simple: the other full of perplexed and intricate mazes. This is mild: that harsh. This is found
by experience effectual for its purposes: the other is
a new project. This is universal: the other calculat
ed for certain coloniies only. This is immediate in
its conciliatory operation: the other remote, contingent, full of hazard. Mine is what becomes the digiity of a ruling people: gratuitous, unconditional, and not held out as matter of bargain and sale.
I have done my duty in proposing it to you. I have,
indeed, tired you by a long discourse; but this is
the misfortune of those to whose influence nothing
will be conceded, and who must win every inch of
their ground by argument. You have heard me with
goodness. May you decide with wisdom! For my
part, I feel my mind greatly disburdened by what I
have done to-day. I: have been the less fearful of
trying your patience, because on this subject I mean
to spare it altogether in future. I have this comfort,
- that, in every stage of the American affairs, I
have steadily opposed the measures that have produced the confusion, and may bring on the destruction, of this empire. I now go so far as to risk a proposal of my own. If I cannot give peace to my
country, I give it to my conscience.
But what (says the financier) is peace to us without money? Your plan gives us no revenue. - No!
But it does: for it secures to the subject the power
of REFUSAL,- the first of all revenues. Experience
is a cheat, and fact a liar, if this power in the subject, of proportioning his grant, or of not granting
? ? ? ? SPEECH ON CONCILIATION WITH AMERICA. 177
at all, has not been found the richest mine of revenue
ever discovered by the skill or by the fortune of man.
It does not, indeed, vote you ~152,750: 11: 2fths,
nor any other paltry limited sum; but it gives the
strong-box itself, the fund, the bank, from whence only
revenues can arise amongst a people sensible of freedom: Posita luditur area. Cannot you in England,
cannot you at this time of day, cannot you, an House
of Commons, trust to the principle -which has raised
so mighty a revenue, and accumulated a debt of near
140 millions in this country? Is this principle to be
true in England and false everywhere else? Is it
not true in Ireland? Has it not hitherto been true
in the colonies? . Why should you presume, that, in
any country, a body duly constituted for any function will neglect to perform its duty, and abdicate its
trust? Such a presumption would go against all
government in all modes. But, in truth, this dread
of penury of supply from a free assembly has no
foundation in Nature. For first observe, that, besides
the desire which all men have naturally of supporting the honor of their own government, that sense of
dignity, and that security to property, which ever attends freedom, has a tendency to increase the stock:of the free. community. Most may be taken where most is accumulated. And what is the soil or climate where experience has not uniformly proved
that the voluntary flow of heaped-up plenty, bursting
from the weight of its own rich luxuriance, has ever
run with a more copious stream of revenue than
could be squeezed from the dry husks of oppressed
indigence by the straining of all the politic machinery in the world?
Next, we know that parties must ever exist in a
VOL. II. 12
? ? ? ? 178 SPEECH ON CONCILIATION WITH AMERICA.
free country. We know, too, that the emulations
of such parties, their contradictions, their reciprocal
necessities, their hopes, and their fears, must send
them all in their turns to him that holds the balance
of the state. The parties are the gamesters; but
government keeps the table, and is sure to be the
winner in the end. When this game is played, T
really think it is more to be feared that the people
will be exhausted than that government will not be
supplied. Whereas whatever is got by acts of absolute power ill obeyed because odious, or by contracts ill kept because constrained, will be narrow, feeble,
uncertain, and precarious.
"Ease would retract
Vows made in pain, as violent and void. "
I, for one, protest against compounding our demands: I declare against compounding, for a poor
limited sum, the immense, ever-growing, eternal debt
which is due to generous government from protected
freedom. And so may I speed in the great object I propose to you, as I think it would not only be an act of injustice, but would be the worst economy in the world,
to compel the colonies to a sum certain, either in the
way of ransom, or in the way of compulsory compact.
But to clear up my ideas on this subject, -- a
revenue from America transmitted hither. Do not
delude yourselves: you can never receive it, --no,
not a shilling. We have experience that from remote countries it is not to be expected. If, when
you attempted to extract revenue from Bengal, you
were obliged to return in loan what you had taken in
imposition, what can you expect from North America? For, certainly, if ever there was a country qualified to produce wealth, it is India; or an in
? ? ? ? SPEECH ON CONCILIATION WITH AMERICA. 179
*stitution fit for the transmission, it is the East India
Company. America has none of these aptitudes. If
America gives you taxable objects on which you lay
your duties here, and gives you at the same time a
surplus by a foreign sale of her commodities to pay
the duties on these objects which you tax at home,
she has performed her part to the British revenue.
But w. ith regard to her own internal establishments,
she may, I doubt not she will, contribute in moderation. I say in moderation; for she ought not to be permitted to exhaust herself. She ought to be
reserved to a war; the weight of which, with the
enemies that We are most likely to have, must be. considerable in her quarter of the globe. There she
may serve you, and serve you essentially.
For that service, for all service, whether of revenue, trade, or empire, my trust is in her interest in:the British Constitution. My hold of the colonies is
in the close affection which grows from common
names, from kindred blood, from similar privileges,
and equal protection. These are ties which, though
light as air, are as strong as links of iron. Let the
colonies always keep the idea of their civil rights
associated with your government, --they will cling
ind grapple to you, and no force under heaven
will be of power to tear them from their allegiance.
But let it be once understood that your government'nay be one thing and their privileges another, that;hese two things may exist without any mutual reation,- the cement is gone, the cohesion is loosendd, and everything hastens to decay and. dissolution. ks long as you have the wisdom to keep the sover-;ign authority of this country as the sanctuary of
iberty, the sacred temple consecrated to our common
? ? ? ? 180 SPEECH ON CONCILIATION WITH AMERICA.
faith, wherever the chosen race and sons of EnglaLnd
worship freedom, they will turn their faces towards
you. The more they multiply, the more friends you
will have; the more ardently they love liberty, the
more perfect will be their obedience. Slavery they
can have anywhere. It is a weed that grows in
every soil. They may have it from Spain, they maw
have it from Prussia. But, until you become lost to
all feeling of your true interest and your natural dignity, freedom they can have from none but you.
This is the commodity of price, of which you have
the monopoly. This is the true Act of Navigation,
which binds to you the commerce of the colonies.
and through them secures to you the wealth of the
world. Deny them this participation of freedom, and
you break that sole bond which originally made, and
must still preserve, the unity of the empire. Do not
entertain so weak an imagination as that your registers and your bonds, your affidavits and your sufferances, your cockets and your clearances, are what form the great securities of your commerce. Do not
dream that your letters of office, and your instruct
tions, and your suspending clauses are the things
that hold together the great contexture of this mys,
terious whole. These things do not make your government. Dead instruments, passive tools as they
are, it is the spirit of the English communion thal
gives all their life and efficacy to them. It is the
spirit of the English Constitution,' which, infused
through the mighty mass, pervades, feeds, unites, in
vigorates, vivifies every part of the empire, ever
down to the minutest' member.
Is it not the same,virtue which does everything foi
us here in England? Do you imagine, then, that i
? ? ? ? SPEECH. ON CONCILIATION WITH AMERICA. 181
is the Land-Tax Act which raises your revenue?
that it is the annual vote in the Committee of Supply
which gives you your army? or that it is the' Mutiny Bill which inspires it with bravery and discipline? No! surely, no! It is the love of the people; it is
their attachment to their government, from the sense. of the deep stake they have in such a glorious instituLion, which gives you your army and your navy, and infuses into both that liberal obedience without which
your army would be a base rabble and. your navy
nothing but rotten timber.
All this, I know well enough, will sound wild and chimerical to the 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, Sursurm 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 tirned a savage wilderness into a glorious empire, and have made the most extensive and the only hon
? ? ? ? 182 SPEECH ON CONCILIATION WITH AMERICA.
orable conquests, not by destroying, but by promoting
the wealth, the number, the lhappiness 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
(quodfelix 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 Brit-:
ain 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
? ? ? ? SPEECH ON CONCILIATION WITH AMERICA. 183
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 assented to, in the said court, in a manner prejudicial to the common wealth, quietness,
rest, and peace of the subjects inhabiting within tha
same. "
"That, from the distance of the said colonies, and
from other circumstances, no method hath hitherto
been devised for procuring a representation in Parliamept 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. " *
"That the said general assemblies, general courts,
or other bodies legally qualified as aforesaid, have at
sundry times freely granted several large subsidies
* 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.
? ? ? ? 184 SPEECH ON CONCILIATION WITH AMERICA.
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 Iritish 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 shipping, of goods, wares,
and merchandise, at the town and within the harbor
of Boston, in the province of Massachusetts Bay, in
North America. '"
? ? ? ? SPEECH ON CONCILIATION WITH AMERICA. 185
"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 thle better regulating the government of the province of the Massachusetts Bay, in
New England. "'"
" That it may he 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
? ? ? ? 186 SPEECH ON CONCILIATION WITH AMERICA.
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 more decent maintenance of the judges of the same. "
? ? ? ? A
LETTER
TO
JOHN FARR AND JOHN HARRIS, ESQRS. , SHERIFFS OF THE CITY OF BRISTOL, ON THE
AFFAIRS OF AMERICA.
I 777.
? ? ? ? LETTER.
GfENTLEMEN, -- 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 fromthe English on the continent or from the English in these islands, of legislative regulations which subvert the liberties of our brethren or which under-. mine our own.
Of the first of these statutes (that for the letter of
? ? ? ? 190 LETTER TO THE SHERIFFS OF BRISTOL.
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;
? ? ? ? LETTER TO THE SHERIFFS OF BRISTOL. 191
out 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 whomI
an act of Parliament had previously put out of the
protection of the law. When the legislature of this
? ? ? ? 192 LETTER TO THE SHERIFFS OF BRISTOL.
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
? ? ? ? LETTER TO THE SHERIFFS OF. BRISTOL. 193
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, II 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
frilly competent to administer justice on all offenders
VOL. II. 13
? ? ? ? 194 LETTER TO THE SHERIFFS OF BRISTOL.
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, tha/t 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
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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 anl 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
? ? ? ? 196 LETTER TO THE SHERIFFS OF BRISTOL.
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 ill 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
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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 ad verted 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 lrovinces, 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 uiider 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; becauseit isof 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 uniderstand, are to continue as they
stood before.
? ? ? ? 198 LETTER TO THE SHERIFFS OF BRISTOL.
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 opicnion 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 buttoo 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. Tliey are marked
with too strong lines to slide into use. No plea, nor
pretence, of inconvenience or evil example (which must
? ? ? ? LETTER TO THE SHERIFFS OF BRISTOL. 199
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.