"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 judges of 5 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 behaviour; and shall not be removed therefrom, but when the said removal shall be adjudged by his Majesty in council, 10 upon a hearing on complaint from the general assembly, or on a complaint from the governor, or council, or the house of representatives, severally, of the colony in which the said chief justice and other judges have exercised the said office." "That it may be proper to regulate the courts of admiralty, 15 or vice-admiralty, authorized by the fifteenth chapter of the fourth of George III., 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 ΤΟ JOHN FARR AND JOHN HARRIS, ESQRS., ON THE AFFAIRS OF AMERICA. 1777. GENTLEMEN: I have the honour 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. 5 If I have the misfortune of differing with some of my 10 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 15 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 in all its miserable consequences; whether they appear, on the one side or the other, in the shape of 167 5 victories or defeats, of captures made from the English on the continent, or from the English in these islands; of legislative regulations which subvert the liberties of our brethren, or which undermine our own. Of the first of these statutes (that for the letter of marque)1 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 10 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, 15 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. 20 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 25 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. 30 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, 5 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, 10 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, 15 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 25 into it. If Lord Balmerino,1 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, 20 30 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 5 and goods, for the mere new-created offence of exercising trade, to be divided as a spoil among the seamen of the navy,1 - 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 10 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 15 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 20 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 25 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 a jury is taken away from the subject in the colonies.2 This is however saying too little; for to try a man under 30 that act is, in effect, to condemn him unheard. A person is brought hither in the dungeon of a ship's hold; thence he |