The Works of the Right Honourable Edmund Burke Volume II Part 9

[23] Mr. Rice.

[24] Lord North.

[25] Journals of the House, Vol. XXV.

[26] Journals of the House, Vol. XXVII.

[27] Ibid.

[28] The Solicitor-General informed Mr. B., when the resolutions were separately moved, that the grievance of the judges partaking of the profits of the seizure had been redressed by office; accordingly the resolution was amended.

[29] Lord North.

[30] 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.

A

LETTER

TO

JOHN FARR AND JOHN HARRIS, ESQRS.,

SHERIFFS OF THE CITY OF BRISTOL,

ON THE

AFFAIRS OF AMERICA.

1777.

Gentlemen,--I have the honor of sending you the two last acts which have been pa.s.sed 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 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) 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 const.i.tutional 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 s.h.i.+ps 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 circ.u.mstances 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; but 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 cla.s.s of infamous actions. Lord c.o.ke, 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 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 s.h.i.+ps 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 a.s.sure 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 s.h.i.+p'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 evidence, where no one local circ.u.mstance 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 unconst.i.tutional. Far from removing the difficulties which impede the execution of so mischievous a project, I would heap new difficulties upon it, if it were in my power. All the ancient, honest, juridical principles and inst.i.tutions of England are so many clogs to check and r.e.t.a.r.d 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 n.o.body 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 fully competent to administer justice on all offenders. 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 b.l.o.o.d.y 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 who ever 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. G.o.d 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. .h.i.therto 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 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 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 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 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 unconst.i.tutional 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 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.

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 further and further at pleasure, on the same argument of mere expedience on which it was first described. There is no equality among us; we are not fellow-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 circ.u.mstances 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 favor 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 counsels. 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, nor prudently contend with what I know is irresistible.

Preserving my principles unshaken, I reserve my activity for rational endeavors; and I hope that my past conduct has given sufficient evidence, that, if I am a single day from my place, it is not owing to indolence or love of dissipation. The slightest hope of doing good is sufficient to recall me to what I quitted with regret In declining for some time my usual strict attendance, I do not in the least condemn the spirit of those gentlemen who, with a just confidence in their abilities, (in which I claim a sort of share from my love and admiration of them,) were of opinion that their exertions in this desperate case might be of some service. They thought that by contracting the sphere of its application they might lessen the malignity of an evil principle.

Perhaps they were in the right. But when my opinion was so very clearly to the contrary, for the reasons I have just stated, I am sure _my_ attendance would have been ridiculous.

I must add, in further explanation of _my_ conduct, that, far from softening the features of such a principle, and thereby removing any part of the popular odium or natural terrors attending it, I should be sorry that anything framed in contradiction to the spirit of our Const.i.tution did not instantly produce, in fact, the grossest of the evils with which it was pregnant in its nature. It is by lying dormant a long time, or being at first very rarely exercised, that arbitrary power steals upon a people. On the next unconst.i.tutional act, all the fas.h.i.+onable world will be ready to say, "Your prophecies are ridiculous, your fears are vain, you see how little of the mischiefs which you formerly foreboded are come to pa.s.s." Thus, by degrees, that artful softening of all arbitrary power, the alleged infrequency or narrow extent of its operation, will be received as a sort of aphorism,--and Mr. Hume will not be singular in telling us, that the felicity of mankind is no more disturbed by it than by earthquakes or thunder, or the other more unusual accidents of Nature.

The act of which I speak is among the fruits of the American war,--a war in my humble opinion productive of many mischiefs, of a kind which distinguish it from all others. Not only our policy is deranged, and our empire distracted, but our laws and our legislative spirit appear to have been totally perverted by it. We have made war on our colonies, not by arms only, but by laws. As hostility and law are not very concordant ideas, every step we have taken in this business has been made by trampling on some maxim of justice or some capital principle of wise government. What precedents were established, and what principles overturned, (I will not say of English privilege, but of general justice,) in the Boston Port, the Ma.s.sachusetts Charter, the Military Bill, and all that long array of hostile acts of Parliament by which the war with America has been begun and supported! Had the principles of any of these acts been first exerted on English ground, they would probably have expired as soon as they touched it. But by being removed from our persons, they have rooted in our laws, and the latest posterity will taste the fruits of them.

Nor is it the worst effect of this unnatural contention, that our _laws_ are corrupted. Whilst _manners_ remain entire, they will correct the vices of law, and soften it at length to their own temper. But we have to lament that in most of the late proceedings we see very few traces of that generosity, humanity, and dignity of mind, which formerly characterized this nation. War suspends the rules of moral obligation, and what is long suspended is in danger of being totally abrogated.

Civil wars strike deepest of all into the manners of the people. They vitiate their politics; they corrupt their morals; they pervert even the natural taste and relish of equity and justice. By teaching us to consider our fellow-citizens in an hostile light, the whole body of our nation becomes gradually less dear to us. The very names of affection and kindred, which were the bond of charity whilst we agreed, become new incentives to hatred and rage when the communion of our country is dissolved. We may flatter ourselves that we shall not fall into this misfortune. But we have no charter of exemption, that I know of, from the ordinary frailties of our nature.