The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface.
• Diary: With Passages From an Autobiography.
• Debates.
• Notes of Debates In the Continental Congress, In 1775 and 1776
• Autobiography.
• Appendix.
• A.
• B.
• C.

APPENDIX.

A.

The following abstract of the argument in the cause of writs of assistants or assistance is the one alluded to in the note to page 125 of this volume.

Gridley. The Constables distraining for rates, more inconsistent with English rights and liberties than Writs of Assistance; and necessity authorizes both.

Thacher. I have searched in all the ancient repertories of precedents, in Fitzherbert’s Natura Brevium, and in the register (Q. What the register is) and have found no such writ of assistance as this petition prays. I have found two writs of assistance in the register, but they are very different from the writ prayed for. In a book, intituled the Modern Practice of the Court of Exchequer, there is indeed one such writ, and but one.

By the Act of Parliament, any other private person may, as well as a custom-house officer, take an officer, a sheriff or constable, &c., and go into any shop, store, &c., and seize; any person authorized by such a writ, under the seal of the Court of Exchequer, may; not custom-house officers only. Strange.

Only a temporary thing.

The most material question is, whether the practice of the Exchequer will warrant this Court in granting the same. The act empowers all the officers of the revenue to enter and seize in the plantations as well as in England. 7 & 8 William III. c. 22, s. 6, gives the same as 13 & 14 Charles II. gives in England. The ground of Mr. Gridley’s argument is this, that this Court has the power of the Court of Exchequer. But this Court has renounced the Chancery Jurisdiction, which the Exchequer has, in cases where either party is the King’s debtor. (Q. into that case.)

In England all informations of uncustomed or prohibited importations are in the Exchequer. So that the custom-house officers are the officers of that Court, under the eye and direction of the Barons.

The writ of assistance is not returnable. If such seizure were brought before your honors, you would often find a wanton exercise of their power. At home, the officers seize at their peril, even with probable cause.

Otis. This writ is against the fundamental principles of law. The privilege of House. A man who is quiet, is as secure in his house, as a prince in his castle—notwithstanding all his debts and civil processes of any kind. But—

For flagrant crimes and in cases of great public necessity, the privilege may be infringed on. For felonies an officer may break, upon process and oath, that is, by a special warrant to search such a house, sworn to be suspected, and good grounds of suspicion appearing.

Make oath coram Lord Treasurer, or Exchequer in England, or a magistrate here, and get a special warrant for the public good, to infringe the privilege of house.

General warrant to search for felonies. Hawkins, Pleas of the Crown. Every petty officer, from the highest to the lowest; and if some of them are common, others are uncommon.

Government justices used to issue such perpetual edicts. (Q. with what particular reference.) But one precedent, and that in the reign of Charles II., when star chamber powers, and all powers but lawful and useful powers, were pushed to extremity.

The authority of this modern practice of the Court of Exchequer. It has an Imprimatur. But what may not have? It may be owing to some ignorant Clerk of the Exchequer. But all precedents, and this among the rest, are under the control of the principles of law. Lord Talbot. Better to observe the known principles of law than any one precedent, though in the House of Lords.

As to Acts of Parliament. An act against the Constitution is void; an act against natural equity is void; and if an act of Parliament should be made, in the very words of this petition, it would be void. The executive Courts must pass such acts into disuse.

8 Rep. 118 from Viner. Reason of the common law to control an act of Parliament. Iron manufacture. Noble Lord’s proposal, that we should send our horses to England to be shod. If an officer will justify under a writ, he must return it. 12 Mod. 396, perpetual writ. Statute Charles II. We have all as good right to inform as custom-house officers, and every man may have a general irreturnable commission to break houses.

By 12 of Charles, on oath before Lord Treasurer, Barons of Exchequer, or Chief Magistrate, to break, with an officer. 14 C. to issue a warrant requiring sheriffs, &c., to assist the officers to search for goods not entered or prohibited. 7 & 8. W. & M. gives officers in plantations same powers with officers in England.

Continuance of writs and processes proves no more, nor so much, as I grant a special writ of assistance on special oath for special purpose.

Pew indorsed warrant to Ware. Justice Walley searched House. Province Law, p. 114.

Bill in chancery. This Court confined their chancery power to revenue, &c.

Gridley. By the 7 & 8 Wm. c. 22, s. 6, this authority of breaking and entering ships, warehouses, cellars, &c. given to the custom-house officers in England. By the statutes of the 12 & 14 of Charles II. it is extended to the custom-house officers in the plantations; and by the statute of 6 Anne, writs of assistance are continued, in company with all other legal processes used, for six months after the demise of the Crown. Now, what this writ of assistance is, we can know only by books of precedents. And we have produced, in a book intituled the Modern Practice of the Court of Exchequer, a form of such a writ of assistance to the officers of the customs. The book has the imprimatur of Wright C. J. of the K. B., which is as great a sanction as any books of precedents ever have, although books of reports are usually approved by all the Judges, and I take Brown, the author of this book, to have been a very good collector of precedents. I have two volumes of precedents, of his collection, which I look upon as good as any, except Coke and Rastall.

And the power given in this writ, is no greater infringement of our liberty than the method of collecting taxes in this Province.

Everybody knows that the subject has the privilege of house only against his fellow subjects, not versus the King either in matters of crime or fine.1

The report of a part of Mr. Otis’s speech as given in Minot’s History, must have been written out by Mr. Adams, at a later moment. In his own copy of that work, he has underlined the passages in it, which he says were interpolated by the person who furnished it for publication. It is no more than just to all parties, the speaker as well as the reporter, that the correct version should be given,—

“I was desired by one of the Court to look into the books, and consider the question now before them concerning writs of assistance. I have accordingly considered it, and now appear, not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare, that whether under a fee or not (for in such a cause as this I despise a fee) I will to my dying day oppose with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villany on the other, as this writ of assistance is.

It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book. I must, therefore, beg your Honors’ patience and attention to the whole range of an argument, that may perhaps appear uncommon in many things, as well as to points of learning that are more remote and unusual; that the whole tendency of my design may the more easily be perceived, the conclusions better discerned, and the force of them be better felt. I shall not think much of my pains in this cause, as I engaged in it from principle. I was solicited to argue this cause as Advocate-General; and because I would not, I have been charged with desertion from my office. To this charge I can give a very sufficient answer. I renounced that office, and I argue this cause, from the same principle; and I argue it with the greater pleasure, as it is in favor of British liberty, at a time when we hear the greatest monarch upon earth declaring from his throne that he glories in the name of Briton, and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown; and as it is in opposition to a kind of power, the exercise of which, in former periods of English history, cost one King of England his head, and another his throne. I have taken more pains in this cause, than I ever will take again, although my engaging in this and another popular cause has raised much resentment. But I think I can sincerely declare, that I cheerfully submit myself to every odious name for conscience’ sake; and from my soul I despise all those, whose guilt, malice, or folly has made them my foes. Let the consequences be what they will, I am determined to proceed. The only principles of public conduct, that are worthy of a gentleman or a man, are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country. These manly sentiments, in private life, make the good citizen; in public life, the patriot and the hero. I do not say, that when brought to the test, I shall be invincible. I pray God I may never be brought to the melancholy trial; but if ever I should, it will be then known how far I can reduce to practice principles, which I know to be founded in truth. In the mean time I will proceed to the subject of this writ.

“In the first place, may it please your Honors, I will admit that writs of one kind may be legal; that is, special writs, directed to special officers, and to search certain houses, &c. specially set forth in the writ, may be granted by the Court of Exchequer at home, upon oath made before the Lord Treasurer by the person who asks it, that he suspects such goods to be concealed in those very places he desires to search. The act of 14 Charles II. which Mr. Gridley mentions, proves this. And in this light the writ appears like a warrant from a Justice of the Peace to search for stolen goods. Your Honors will find in the old books concerning the office of a Justice of the Peace, precedents of general warrants to search suspected houses. But in more modern books you will find only special warrants to search such and such houses specially named, in which the complainant has before sworn that he suspects his goods are concealed; and you will find it adjudged that special warrants only are legal. In the same manner I rely on it, that the writ prayed for in this petition, being general, is illegal. It is a power, that places the liberty of every man in the hands of every petty officer. I say I admit that special writs of assistance, to search special places, may be granted to certain persons on oath; but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself, before I proceed to other acts of Parliament. In the first place, the writ is universal, being directed ‘to all and singular Justices, Sheriffs, Constables, and all other officers and subjects;’ so, that, in short, it is directed to every subject in the King’s dominions. Every one with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner also may control, imprison, or murder any one within the realm. In the next place, it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him. In the third place, a person with this writ, in the daytime, may enter all houses, shops, &c. at will, and command all to assist him. Fourthly, by this writ not only deputies, &c., but even their menial servants, are allowed to lord it over us. Now one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses, when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and every thing in their way; and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and 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. The 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.

“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:—

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 I., 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 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 before in the preamble, is another end of this law. Now shipping and seamen are useful and necessary to a commercial nation, in times of peace as well as war.

4. Some clauses in this statute are in their nature temporary, and limited to the duration of the war. Sections 2, 3, 4, 5, 6, 7, 8, &c.; others are expressly limited to the continuance of war, as s. 14, “during the continuance of the present war,” and s. 19, “during the continuance thereof,” and s. 21. But s. 9 and s. 20 are not, by the nature of them, limited to war; they are not expressly and in terms limited to years or to war.

5. If it be not now in force, why is it bound up in the statute book, and why was not the whole act limited to years or to war?

If it be once established as a fact that Lieutenant Panton acted in the character of an impress-officer, not in that of an officer of the customs; and if it be also established as law, that no officer has a legal right to impress a seaman, our next inquiry must be, what the rules of the civil law are relative to homicide in cases of self-defence. Self-preservation is the first law of nature. Self-love is the strongest principle in our breasts, and self-preservation not only our inalienable right, but our clearest duty, by the law of nature. This right and duty are both confirmed by the municipal laws of every civilized society.

2 Domat, 638, s. 6. “He who is attacked by robbers, or by other persons, that are armed in such a manner as to put him in danger of his life, in case he does not defend himself, may kill the robber or the aggressor, without any fear of being punished as a murderer.”

Wood’s Inst. civil law, 270. “Necessary homicide is when one, for the defence of his own life, kills the aggressor. This may be done without expecting the first blow, for that may make him incapable to defend himself at all. But this ought not to exceed the bounds of self-defence. The manner of self-defence directs that you should not kill, if you can by any means escape, &c.”

Cod. lib. 9, tit. 16. “2. De eo, qui salutem suam defendit. Is qui aggressorem vel quemcunque alium in dubio vitæ discrimine constitutus occiderit, nullam ob id factum calumniam metuere debet. 3. Si quis percussorem ad se venientem, gladio repulerit; non ut homicida tenetur: quia defensor propriæ salutis in nullo peccasse videtur. 4. Si (ut allegas) latrocinantem peremisti: dubium non est, eum, qui inferendæ cædis voluntate præcesserat, jure cæsum videri.”

“Liceat cuilibet aggressorem nocturnum in agris, vel obsidentem vias, atque insidiantem prætereuntibus, impunè occidere, etiam si miles sit: melius namque est his occurrere et mederi, quàm injuriâ receptâ vindictam perquirere.”

Note 4c. “Homicida non est, qui aggressorem in vitæ discrimine constitutus interficit, nec primum ictum quis expectare debet, quia irreparabilis esse potest.”

Gaill. page 509. Pœna homicidii corporalis nunquam habet locum, nisi in homicidio voluntario, quando homicidium, ex proposito, destinata voluntate, et quidem dolo malo commissum est. Debet enim verus et expressus intervenire dolus, etc.; et hoc usque adeo verum est, ut etiam lata culpa non æquiparetur dolo, etc. Dolus autem non præsumitur regulariter, etc.;—quapropter dolum allegans, eum probare debet, etc. Natura enim bona est a suis principiis, etc. Ex hac principali regulâ, quod videlicet pœna ordinaria in homicidio requirat dolum, multa singularia et quotidie usu venientia inferri possunt. Et primo, quod homicidium, cum moderamine inculpatæ tutelæ commissum, non sit punibile: puta, si quis provocatus se cum moderamine inculpatæ tutelæ defendat, et aggressorem occidat; talis enim homicida non puniri, sed plene absolvi debet, idque triplici ratione confirmatur. Primo, quod defensio sit juris naturalis, ab omni jure permissa, etc. Deinde, quod aggressor, sive provocans, non ab alio, sed a se ipso occidi videatur et per consequens, quod provocatus non censeatur esse in dolo. Tertio, quia occidens ad sui defensionem, non committit maleficium, cum vim vi repellere liceat, et ubi non est delictum, ibi pœna abesse debet.

Et regulariter ex communi opinione, aggressus præsumitur omnia facere ad sui defensionem, non autem ad vindictam. Necessitas doli præsumptionem excludit, etc. etc. Ratio, quia necessaria defensio omni jure, etiam divino permissa, et sine peccato est. Defensio autem moderata, sive cum moderamine inculpatæ tutelæ dicitur, quando quis non potuit aliter se ab offensione tueri, etc.

Præsumitur autem in discrimine vitæ quis constitutus, eo ipso quod ab alio, armata manu, et gladio evaginato aggreditur, terror ille armorum aliquem in vitæ discrimen adducit, etc.

Sed quid si provocatus modum inculpatæ tutelæ excedat, et aggressorem in fugâ occidat, an pœnâ ordinariâ legis Corneliæ, etc., plectendus sit? Minime, sed extra ordinem, judicis arbitrio, ratione excessus puniri debet, etc. Ratio, quia, ut paulo ante dictum, in provocato non præsumitur dolus, et animus occidendi, aut vindictæ studium, sed potius defensionis necessitas. Nec etiam fugere tenetur, si fuga ei periculum vitæ adferret; provocatus enim tanquam intenso dolore commotus, non est in plenitudine intellectus: metus improvisus instantis periculi tollit rectum judicium et consilium deliberandi, et ideo dicunt DD. quod provocatus non habeat stateram in manu, ut possit dare ictus et vulnera ad mensuram, etc. Puniendus igitur provocatus pro isto excessu, non ut dolosus, quia provocatio præcedens a dolo excusat; sed ut culpabilis, etc.

Adeo autem defensio favorabilis est, ut etiam tertius, puta amicus provocati, si intercedendo aggressorem occidat, excusetur a pœnâ ordinariâ.

Page 515. Sexto infertur, quod homicidium calore iracundiæ perpetratum non puniatur pœnâ ordinariâ: quod est intelligendum de iracundiâ lacessitâ, quando quis ab alio verbis injuriosis ad iram provocatur; nam eo casu ira excusat a pœna ordinaria, etc. Quo pertinet, quod supra dictum est, hominem intenso dolore permotum, non esse in plenitudine intellectus, etc.

Maranta, page 49, pars 4, dist. 1, 77. Hoc patet; quia homicidium commissium per culpam, dicitur crimen extraordinarium, et punitur pœnâ arbitraria, etc. Ubi si maritus occidit uxorem deprehensam in adulterio, non punitur pœnâ mortis sed alia pœnâ corporali mitiori; et ratio est; quia tale homicidium dicitur culposum, et non dolosum; ex quo difficile fuit temperare justum dolorem: cum ergo ex prædictis appareat, quod homicidium culpa commissum puniatur pœnâ arbitraria et extraordinaria, sequitur de necessitate, quod non potest judex imponere pœnam mortis, quæ est pœna ordinaria, etc.

So much for the distinction between homicide with deliberation and without deliberation, according to the civil law, which is analogous to that of the common law, between murder and manslaughter. But the case of these prisoners does not require this distinction. I am not contending for the sentence of manslaughter against my clients; I think they are entitled to an honorable acquittal. They have committed no crime whatever, but they have behaved with all that prudence and moderation, and at the same time with that fortitude and firmness, that the law requires and approves.

Mr. Panton and his associates and attendants had no authority for what they did. They were trespassers and rioters. The evidence must be carefully recapitulated; their arms, swords, pistols, &c.; their threats and menaces. Panton’s orders for more men, his orders to break down the bulkhead, their execution of these orders, their fetching the adze and the crow, but above all their discharge of a pistol right in the face of Corbet, which, though loaded only with powder, wounded him so badly in his lip—these circumstances are abundantly sufficient to show who was the first aggressor, and to show that the lives of the present prisoners were in danger. What could Corbet think, when a pistol had been presented at his mouth, and discharged, loaded, he knew not with what? It had wounded him, he knew not how badly. He saw a desperate gang of armed sailors before him, other pistols cocked and presented at him and his companions, their heads and breasts, drawn swords in the hands of some, continued threats to blow their brains out; could he expect any thing but death? In these circumstances, what could he do but defend himself as he did? In these circumstances, what was his duty? He had an undoubted right, not merely to make a push at Lieutenant Panton, but to have darted an harpoon, a dagger, through the heart of every man in the whole gang.

If Mr. Panton came as a custom-house officer, and it may be true that he came in part to search the ship for uncustomed goods, he had a fair opportunity to do it. He asked and was told that the hatchways were open; he ordered the lazaretto open, and it was done, and after this, instead of searching for uncustomed goods, he proceeds directly to search for seamen.

The killing of Lieutenant Panton was justifiable homicide; homicide se defendendo.

1 Hawkins, 71, s. 4, middle. “The killing of dangerous rioters by any private persons, who cannot otherwise suppress them or defend themselves from them, inasmuch as every private person seems to be authorized by the law to arm himself for the purposes aforesaid.”

Same page, s. 21. A woman kills one who attempts to ravish her, may be justified. Page 72, s. 23. towards the end. “It seems that a private person, and a fortiori, an officer of justice, who happens unavoidably to kill another in endeavoring to defend himself from, or to suppress dangerous rioters, may justify the fact, inasmuch as he only does his duty in aid of the public justice.” s. 24. “I can see no reason why a person, who, without provocation, is assaulted by another in any place whatever, in such a manner as plainly shows an intent to murder him, as by discharging a pistol, or pushing at him with a drawn sword, may not justify killing such an assailant.” Page 75, s. 14. “Not only he who on an assault retreats to a wall or some such strait, beyond which he can go no further, before he kills the other, is judged by the law to act upon unavoidable necessity; but also he who being assaulted in such a manner and such a place, that he cannot go back without manifestly endangering his life, kills the other without retreating at all.”

Kelyng, page 128, bottom. “It is not reasonable for any man that is dangerously assaulted, and when he perceives his life in danger from his adversary, but to have liberty for the security of his own life, to pursue him who maliciously assaulted him; for he that hath manifested that he hath malice against another, is not fit to be trusted with a dangerous weapon in his hand.”

Kelyng, page 136, top. Buckner’s case. Imprisoned injuriously, without process of law, &c. Page 136, bottom. “3. If a man perceives another by force to be injuriously treated, pressed, and restrained of his liberty, though the person abused doth not complain, &c. &c., others, out of compassion, shall come to his rescue, and kill any of those that shall so restrain him, that is manslaughter.”

Kelyng, 59. Hopkin Hugget’s case, who killed a man in attempting to rescue a seaman impressed without warrant.

2 Ld. Raym., Queen vs. Tooley, & als. The case of the reforming constables. Holt, 484, 485. Mawgridge’s case.

Foster, 312, 316. Vid. Foster, 292. The smart, &c. for manslaughter. Also 296.

A question has been started by Sir Francis Barnard, whether, (as there is no distinction between murder and manslaughter, in the civil law,) the court can allow clergy, if they find the prisoners guilty of manslaughter; that is, whether the court can do any thing but pass sentence of death, and respite execution, and recommend them to mercy? He said he had formerly attended at the admiralty sessions in England, and had heard it said, by the court, that clergy was expressly taken away by these statutes from manslaughter, and the court could not grant it. But see a paragraph in Foster to the contrary, 288.

In this case I shall not make a question whether Corbet and others are guilty of murder or of manslaughter. I am clear they are guilty of neither. All that they did was justifiable self-defence, or to use the expressions of most writers upon Crown law, it was justifiable and necessary homicide, se defendendo. This will be fully shown by a particular examination of the law and of the evidence.

But it may not be amiss to consider the observation of Sir Francis, in order to remove the clouds from his brain. 1. It is total ignorance to say there is no distinction between murder and manslaughter in civil law, as appears abundantly already.1 2. I say that clergy is not expressly taken away by the statutes from manslaughter; by the 28 Henry VIII., all felonies are to be tried according to the common course of the laws of this land. What is the common course of the laws of the land, relative to manslaughter, which is a felony? It has its clergy. It is true the word manslaughter is once mentioned in the statutes of Henry VIII. c. 15, s. 2. “Every indictment found, &c. of treasons, felonies, robberies, murders, manslaughters, or such other offences, &c. that then such order, &c. judgment and execution shall be had, as against such offences upon land.” What is the judgment versus manslaughter upon land? They have their clergy. s. 3. For treasons, robberies, felonies, murders and confederacies done at sea, the offenders shall not have clergy. Here manslaughter is dropped, so that clergy is not taken from manslaughter by this act.

By 11 & 12 William III. Piracies, felonies, and robberies, are mentioned, but manslaughter is not. The word is not in the whole statute. It was needful to mention it in that of Henry VIII., because the trial was to be by the law of the land, and it clearly has its clergy. But, by this statute, the trial and judgment and sentence were to be all by the civil law, where the offence that is called manslaughter by the common law is never punished with death. But it is observable that clergy is not taken away by this statute from any crime.

By 4 George, c. 11, s. 7. Any pirate, felon or robber, within the 11 & 12 William, may be tried in the manner and form of 28 Henry VIII., and shall be excluded clergy. We see that whenever the trial is to be by a jury and the common law, clergy is excluded from such crimes as were not entitled to it upon land; and the reason was, because it is a known rule of law, that when the legislature creates any new felony, it shall be entitled to clergy, if not expressly taken away. Doubts might arise, whether making crimes at sea felonies, was not creating new felonies, and so they would be entitled to clergy. To avoid this, the clause was inserted.

Lord Raymond, 1496. “From these cases it appears, that, though the law of England is so far peculiarly favorable (I use the word peculiarly, because I know no other law that makes such a distinction between murder and manslaughter) as to permit the excess of anger and passion, (which a man ought to keep under and govern.) in some instances to extenuate the greatest of private injuries, as the taking away a man’s life is; yet, in those cases, it must be such a passion, as for the time deprived him of his reasoning faculties.”

Foster, 288. If taking general verdicts of acquittal in plain cases of death per infortunium, &c. deserveth the name of a deviation, it is far short of what is constantly practised at an admiralty sessions, under 28 Henry VIII., with regard to offences not ousted of clergy by particular statutes, which, had they been committed at land, would have been entitled to clergy. In these cases the jury is constantly directed to acquit the prisoner; because the marine law doth not allow of clergy in any case. And therefore in an indictment for murder on the high seas, if the fact cometh out, upon evidence, to be no more than manslaughter, supposing it to have been committed at land, the prisoner is constantly acquitted.”

Observations on the statutes 422, note (z.) “I have before observed that by the civil law, as well as the law of Scotland, there is no such offence as what is with us termed manslaughter. The Scots, therefore, might have apprehended, that if not convicted of murder they should have been acquitted.”

C.

Page 377.

The following is the draught of the articles referred to in connection with the declaration of rights and grievances made by the Congress of 1774, one of the most important papers of the revolutionary history. In order to facilitate the comparison of the two, they are here placed in parallel columns. The verbal alterations are marked in italics.

Heads of Grievances and Rights.

DRAUGHT.

Whereas, since the accession of the present King, Parliament has claimed a power of right to bind the people of the Colonies in North America by statutes in all cases whatsoever; and for carrying the said power into execution, has, by some statutes, expressly taxed the people of the said Colonies, and by divers other statutes under various pretences, but in fact for the purpose of raising a revenue, has imposed “rates and duties,” payable in the said Colonies, established a Board of Commissioners, and extended the jurisdiction of Courts of Admiralty therein, for the collection of such “rates and duties.”

And whereas some of the said statutes are also intended to render all Judges in the said Colonies dependent upon the Crown only.

And whereas since the said accession, statutes have been made for quartering and supplying troops to be kept in the said Colonies.

And whereas since the conclusion of the last war, orders have been issued by the King, that the authority of the commander-in-chief, and under him, of the Brigadier-General in the Northern and Southern departments, in all military affairs shall be supreme, and must be obeyed by the troops as such, in all the civil governments in America.

And whereas a statute was made in the seventh year of this reign “for suspending the proceedings of the Assembly of New York, &c.” and Assemblies in these Colonies have of late years been very frequently dissolved.

And whereas, during the present reign, dutiful and reasonable petitions to the Crown, from the representatives of the people in these Colonies, have been repeatedly treated with contempt.

And whereas, it has been lately resolved in Parliament, that, by force of a statute made in the thirty-fifth year of Henry VIII., Colonists may be carried to England, and tried there, on accusations for offences committed in those Colonies. And by a statute made in the twelfth year of this reign such trials are directed in the cases therein mentioned.

And whereas in the last session of Parliament three statutes were made and declared to have force within the Province of Massachusetts Bay, one of them “for discontinuing, &c. the landing, &c. goods, wares, and merchandises, at the town and within the harbor of Boston,” &c.; another, “for the better regulating the government, &c.;” and the third, “for the impartial administration of justice,” &c.*

And whereas, in the same session, another statute was made, “for making more effectual provision for the government of the Province of Quebec,” &c.

And whereas the good people of these Colonies, justly alarmed by the proceedings of Parliament and Administration, have duly appointed and directed delegates to meet and sit in General Congress at Philadelphia, in this month of September, 1774, in order to such establishment as that their religion, laws, and liberties, may not be subverted; upon which appointment and direction, the said delegates being now assembled in a full and free representative* of these Colonies, taking into their most serious consideration the best means for attaining the ends aforesaid, do, in the first place, (as their ancestors in like case have usually done,) for vindicating and asserting their rights and liberties, declare—

1. That the power of making laws for ordering or regulating the internal polity of these Colonies, is, within the limits of each Colony, respectively and exclusively vested in the Provincial Legislature of such Colony; and that all statutes for ordering or regulating the internal polity of the said Colonies, or any of them, in any manner or in any case whatsoever, are illegal and void.

2. That all statutes, for taxing the people of the said Colonies, are illegal and void.

3. That all the statutes before mentioned, for the purpose of raising a revenue, by imposing “rates and duties” payable in these Colonies, establishing a Board of Commissioners, and extending the jurisdiction of Courts of Admiralty, for the collection of such “rates and duties,” are illegal and void.

4. That Judges, within these Colonies, ought not to be dependent on the Crown only; and that their commissions ought to be during good behavior.

5. That the raising or keeping a standing army within these Colonies in time of peace, unless it be with the consent of the Provincial Legislatures, is illegal, pernicious, and dangerous; and that every statute for quartering or supplying troops within the said Colonies is illegal and void.

6. That the orders aforesaid for rendering the authority of the Commander-in-chief, and under him, of the Brigadiers-General, supreme, are illegal and void.

7. That for redress of all grievances, and for the amending, strengthening, and preserving of the laws, Assemblies ought to be held in each of these Colonies frequently, and at least once in every year; that such Assemblies ought not to be prorogued or dissolved, before they have had sufficient time to deliberate, determine, and bring to conclusion their counsels on public affairs; that any statute for suspending the proceedings of any such Assembly, is illegal and void; and that every dissolution of an Assembly within these Colonies, during the present reign, on pretence of misbehavior in the representatives of the people, has been arbitrary and oppressive.

8. That it is the right of the subjects to petition the King; and that a contemptuous treatment of such petitions has a most pernicious tendency.

9. That the resolution in Parliament on the statute made in the thirty-fifth year of Henry VIII., was arbitrary and erroneous; and that any statute directing the trials of Colonists to be had in England or elsewhere, on accusation for offences committed in the Colonies, is illegal and void.

10. That the three statutes made in the last session of Parliament, and declared to have force within the Province of Massachusetts Bay, are oppressive to the people of that Province, dangerous to the liberties of these Colonies, illegal and void.

11. That the statute made in the same session, “for making more effectual provision for the government of the Province of Quebec,” &c. is not only unjust to the people in that Province, but dangerous to the interests of the Protestant religion and of these Colonies, and ought to be repealed.

12. And they do claim, demand, and insist, on all and singular the rights and liberties before mentioned as indubitably belonging to them; and no declarations, judgments, doings, proceedings, or statutes, to the prejudice of the people in any of the premises, ought in any wise to be drawn hereafter into consequence or example; and these, their undoubted rights and liberties, with the blessing of Divine Providence, which they humbly and ardently implore in favor of their just exertions to preserve the freedom of rendering to their Creator the worship they judge most acceptable to him, and of promoting the happiness of his creatures, they are resolved, to the utmost of their power, to maintain and defend.

DECLARATION AS ADOPTED.

“Whereas, since the close of the last war, the British Parliament, claiming a power, of right, to bind the people of America by statutes in all cases whatsoever, hath in some acts expressly imposed taxes on them, and in others, under various pretences, but in fact for the purpose of raising a revenue, hath imposed rates and duties payable in these Colonies, established a Board of Commissioners, with unconstitutional powers, and extended the jurisdiction of Courts of Admiralty, not only for collecting the said duties, but for the trial of causes merely arising within the body of a county.”

And whereas in consequence of other statutes, judges, who before held only estates at will in their offices, have been made dependent on the Crown alone for their salaries, and standing armies kept in times of peace.

And whereas it has lately been resolved in Parliament, that, by force of a statute made in the thirty-fifth year of the reign of King Henry VIII. colonists may be transported to England, and tried there upon accusations for treasons and misprisions, or concealment of treasons, committed in the Colonies, and by a late statute, such trials have been directed in cases therein mentioned.

And whereas in the last session of Parliament three statutes were made; one entitled “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;” another entitled “An act for the better regulating the government of the Province of Massachusetts Bay in New England;” and another entitled “An act for the impartial administration of justice, in the cases of persons questioned for any act 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;” and another statute was then made, “for making more effectual provision for the government of the Province of Quebec,” &c. All which statutes are impolitic, unjust, and cruel, as well as unconstitutional, and most dangerous and destructive of American rights.

And whereas Assemblies have been frequently dissolved, contrary to the rights of the people, when they attempted to deliberate on grievances; and their dutiful, humble, loyal, and reasonable petitions to the Crown, for redress, have been repeatedly treated with contempt by his Majesty’s Ministers of State.

The good people of the several Colonies of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Newcastle Kent and Sussex on Delaware, Maryland, Virginia, North Carolina, and South Carolina, justly alarmed at these arbitrary proceedings of Parliament and Administration, have severally elected, constituted, and appointed deputies, to meet and sit in General Congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties, may not be subverted. Whereupon the deputies so appointed, being now assembled, in a full and free representation of these Colonies, taking into their most serious consideration the best means of attaining the ends aforesaid, do in the first place, as Englishmen, their ancestors, in like cases have usually done, for asserting and vindicating their rights and liberties, declare,—

That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English Constitution, and the several charters or compacts, have the following rights:—

Resolved, N. C. D. 1. That they are entitled to life, liberty, and property, and they have never ceded to any sovereign power whatever a right to dispose of either, without their consent.

2. That our ancestors, who first settled these Colonies, were, at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural born subjects, within the realm of England.

3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.

4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council; and as the English colonists are not represented, and from their local and other circumstances cannot be properly represented in the British Parliament, they are entitled to a free and exclusive power of legislation in their several Provincial Legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed. But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British Parliament as are, bonâ fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America, without their consent.

5. That the respective Colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.

6. That they are entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they have, by experience, respectively found to be applicable to their several local and other circumstances.

7. That these, his Majesty’s Colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.

8. That they have a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.

9. That the keeping a standing army in these Colonies, in times of peace, without the consent of the Legislature of that Colony in which such army is kept, is against law.

10. It is indispensably necessary to good government, and rendered essential by the English Constitution, that the constituent branches of the Legislature be independent of each other; that therefore the exercise of legislative power in several Colonies, by a Council appointed during pleasure by the Crown, is unconstitutional, dangerous, and destructive to the freedom of American legislation.

All and each of which the aforesaid deputies, in behalf of themselves and their constituents, do claim, demand, and insist on, as their indubitable rights and liberties; which cannot be legally taken from them, altered or abridged, by any power whatever, without their own consent, by their representatives in their several Provincial Legislatures.

In the course of our inquiry, we find many infringements and violations of the foregoing rights, which, from an ardent desire that harmony and mutual intercourse of affection and interest may be restored, we pass over for the present, and proceed to state such acts and measures as have been adopted since the last war, which demonstrate a system formed to enslave America.

Resolved, N. C. D. That the following Acts of Parliament are infringements and violations of the rights of the Colonists; and that the repeal of them is essentially necessary, in order to restore harmony between Great Britain and the American Colonies, namely,—

The several acts of 4 George III. c. 15 and c. 34; 5 George III. c. 25; 6 George III. c. 52; 7 George III. c. 41 and c. 46; 8 George III. c. 22, which impose duties for the purpose of raising a revenue in America, extend the power of the Admiralty courts beyond their ancient limits, deprive the American subject of trial by jury, authorize the Judge’s certificate to indemnify the prosecutor from damages that he might otherwise be liable to, requiring oppressive security from a claimant of ships and goods seized, before he shall be allowed to defend his property, and are subversive of American rights.

Also 12 George III. c. 24, intituled “An act for the better securing His Majesty’s dock-yards, magazines, ships, ammunition and stores,” which declares a new offence in America, and deprives the American subject of a constitutional trial by jury of the vicinage, by authorizing the trial of any person charged with the committing any offence described in the said act, out of the realm, to be indicted and tried for the same in any shire or county within the realm.

Also the three acts passed in the last session of Parliament, for stopping the port and blocking up the harbor of Boston, for altering the charter and government of Massachusetts Bay, and that which is intituled “An act for the better administration of justice,” &c.

Also the act passed in the same session, for establishing the Roman Catholic religion in the Province of Quebec, abolishing the equitable system of English laws, and erecting a tyranny there, to the great danger, (from so total a dissimilarity of religion, law, and government) of the neighboring British Colonies, by the assistance of whose blood and treasure the said country was conquered from France.

Also the act passed in the same session for the better providing suitable quarters for officers and soldiers in his Majesty’s service in North America.

Also, that the keeping a standing army in several of these Colonies, in time of peace, without the consent of the Legislature of that Colony in which such army is kept, is against law.

To these grievous acts and measures Americans cannot submit; but in hopes their fellow subjects in Great Britain will, on a revision of them, restore us to that state in which both countries found happiness and prosperity, we have, for the present, only resolved to pursue the following peaceable measures.

1. To enter into a non-importation, non-consumption, and non-exportation agreement or association.

2. To prepare an address to the people of Great Britain, and a memorial to the inhabitants of British America; and

3. To prepare a loyal address to his Majesty, agreeable to resolutions already entered into.

end of volume ii.

[1 ]Here follow extracts from the Acts of Parliament and the Province Law, together with the forms of the petition and writ used.

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

[1 ]Sed vid. Ld. Raymond, 1496. And especially Barrington’s Observations on the Statutes, p. 54, bottom, note. “By the law of Scotland, there is no such thing as manslaughter, nor by the civil law; and then a criminal indicted for murder, under the statute of Henry VIII., when the Judges proceed by the rules of the civil law, must either be found guilty of the murder or acquitted.”

[* ]Note in the margin. Q. Which of these two last Statutes was first in time?

[* ]Note in the margin. Q. If the Colonies should not be named?