I

GENTLEMEN,

HAVE the honour of fending you the two laft

acts which have been paffed with regard to the troubles in America. These acts are fimilar to all the reft which have been made on the fame fubject. They operate by the fame principle; and they are derived from the very fame policy. I think they compleat the number of this fort of ftatutes to nine. It affords no matter for very pleasing reflection, to observe, that our fubjects diminish, as our laws increase.

If I have the misfortune of differing with fome of my fellow-citizens on this great and arduous fubject, it is no fmall confolation to me, that I do not differ from you. With you, I am perfectly united. We are heartily agreed in our deteftation of a civil war. We have ever expreffed the moft unqualified difapprobation of all the fteps which have led to it, and of all those which tend to prolong it. And I have no doubt that we feel exactly the fame emotions of grief and shame on all its miferable confequences; whether they appear,

on the one fide or the other, in the fhape of victories or defeats, of captures made from the English on the continent, or from the English in these iflands; of legislative regulations which fubvert the liberties of our brethren or which undermine

our own.

Of the first of these ftatutes (that for the letter of marque) I fhall fay little. Exceptionable as it may be, and as I think it is in fome particulars, it feems the natural, perhaps neceffary refult of the measures we have taken, and the fituation we are in. The other (for a partial fufpenfion of the Habeas Corpus) appears to me of a much deeper malignity. During its progrefs through the house of commons, it has been amended, fo as to exprefs more distinctly than at first it did, the avowed fentiments of those who framed it and the main ground of my exception to it is, because it does exprefs, and does carry into execution, purposes which appear to me fo contradictory to all the principles, not only of the conftitutional policy of Great Britain, but even of that fpecies of hoftile juftice, which no afperity of war wholly extin guishes in the minds of a civilized people.

It seems to have in view two capital objects; the firft, to enable adminiftration to confine, as long as it fhall think proper, thofe, whom that act is pleafed to qualify by the name of pirates: Thofe fo qualified, I understand to be, the commanders

and

and mariners of fuch privateers and fhips of war belonging to the colonies, as in the course of this unhappy conteft may fall into the hands of the crown. They are therefore to be detained in prifon, under the criminal defcription of piracy, to a future trial and ignominious punishment, whenever circumstances fhall make it convenient to execute vengeance on them, under the colour of that odious and infamous offence,

To this firft purpose of the law, I have no fmall diflike; because the act does not, (as all laws, and all equitable tranfactions ought to do) fairly defcribe its object. The perfons, who make a naval war upon us, in confequence of the present troubles, may be rebels; but to call and treat them as pirates, is confounding, not only the natural dif tinction of things, but the order of crimes; which, whether by putting them from a higher part of the fcale to the lower, or from the lower to the higher, is never done without dangeroufly difordering the whole frame of jurifprudence, Though piracy may be, in the eye of the law, a lefs offence than treafon; yet as both are, in effect, punished with the fame death, the fame forfeiture, and the fame corruption of blood, I never would take from any fellow creature whatever, any fort of advantage which he may derive to his fafety from the pity of mankind, or to his reputation from their general feelings, by degrading his offence, when I

cannot

cannot foften his punishment. The general fenfe of mankind tells me, that those offences, which may poffibly arife from mistaken virtue, are not in the clafs of infamous actions. Lord Coke, the oracle of the English law, conforms to that general fense where he says, that "thofe things which "are of the higheft criminality may be of the leaft "difgrace." The act prepares a fort of mafqued proceeding, not honourable to the juftice of the kingdom, and by no means neceffary for its fafety. I cannot enter into it. If Lord Balmerino, in the laft rebellion, had driven off the cattle of twenty clans, I fhould have thought it would have been a fcandalous and low juggle, utterly unworthy of the manliness of an English judicature, to have tried him for felony as a stealer of cows.

Befides, I must honeftly tell you, that I could not vote for, or countenance in any way, a statute, which ftigmatizes with the crime of piracy, these men, whom an act of parliament had previously put out of the protection of the law. When the legiflature of this kingdom had ordered all their fhips and goods, for the mere new-created offence of exercising trade, to be divided as a spoil among the feamen of the navy,-to confider the neceffary reprifal of an unhappy, profcribed, interdicted people, as the crime of piracy, would have appeared in any other legislature than ours, a strain of the most infulting and moft unnatural cruelty

and injuftice. I affure you, I never remember to have heard of any thing like it in any time or country.

The fecond profeffed purpose of the act is to detain in England for trial, thofe who fhall commit high treason in America.

That you may be enabled to enter into the true spirit of the prefent law, it is neceffary, gentlemen, to apprise you, that there is an act, made fo 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 treafons committed out of the realm. In the year 1769, parliament thought proper to acquaint the crown with their conftruction of that act in a formal address, wherein they intreated his majefty, to cause perfons, charged with high treafon in America, to be brought into this kingdom for trial. By this act of Henry the eighth, fo conftrued and fo applied, almost all that is fubftantial and beneficial in a trial by jury, is taken away from the fubject 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 perfon is brought hither in the dungeon of a fhip's hold; thence he is vomited into a dungeon on land; loaded with irons, unfurnished with money, unfupported by friends, three thousand miles from all means of calling upon or confronting evidence, where