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tent it may turn out dangerous, I shall dissent from it.

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Mr. Dunning. Sir, I rise to support that great pillar of the constitution, the appeal for murder; and I am not satisfied that a precedent should be instituted in order to operate as an example for the taking it away in Great Britain as well as the colonies. This clause considers it now as an existing law in America; I cannot say that I look upon it in that light; but this is not the first time this question has been agitated in this House, and has been called and treated as a remnant of barbarism and gothicism. The whole of our constitution, for aught I know, is Gothic. Is it, then, the present idea to destroy every part of that Gothic constitution, and adopt a Macaroni one in its stead? If so, it is a system of ministerial despotism that is adopted here: when a political purpose is in view, things may be adopted that may tend to operate as a precedent, that may become at last prejudicial to the public welfare. I wish, Sir, that, in every step of this matter, gentle men would be a little more cautious, as I much fear the system would soon be adopted in England; it is a proposition produced on a sudden; and as in its ex

Mr. Solicitor General Wedderburn. I confess, Sir, that this part of our constitu. tion has never appeared to me as essential: it is very much of a footing with a trial by ordeal. Till laws and society took place there was no other method of deciding between right and wrong. There is now no law in being to prevent trial by battle; and not in very ancient times was it that the court of Common Pleas attended in Tothill-fields to judge of the trials. None but the wife of the deceased, as a female, can appeal; and this may be compromised by a sum of money; it

may be reduced into a civil suit; but by being adopted in the manner proposed in this clause, it can operate to no bad pur pose; nor do I conceive that the liberty of this country will be at all in danger, as it is only a temporary expedient.

Mr. Edmund Burke. I do not controvert, in an adverse line, what is advanced by the learned gentleman. There is nothing more true than that man has given up his share of the natural right of defence into that of the state, in order to be protected by it. But this is part of the whole law, which you ought not to separate, or else you will soon lay the axe to the root of it in England. If there is an appeal for rape and robbery, you ought to have one for murder. I allow, that combat was part of this appeal; but it was superstition and barbarism to the last degree. I cannot, in any degree, consent that the common law should, in any case, be taken away from one part of his Majesty's subjects, and not from the other. But as this is a question of great magnitude, whenever it comes on with respect to Great Britain, I hope then humbly to offer my opinion

on it.

Mr. W. Burke. No man has the least doubt but the learned gentleman (Mr. Wallace) is fully acquainted with every part of the law, ancient as well as modern: but I think, Sir, he should have brought you in a Bill to have repealed the law in England first; but when this great ques tion comes on, I shall readily give my opinion on it.

Mr. Stanley entered deeply into the polity of our constitution, and dwelt a long time on the repeal of the law respecting appeals in general: I think it is hard, said he, that a man should be tried twice for the same offence, and when you have an advantage by knowing his secrets and defence.

I apprehend that criminal laws were made | to save the lives of persons, and not to destroy them; that the power of grace or pardon is certainly constitutional, and is a very valuable and glorious prerogative in the crown; and a trial is not complete without it. There never was an instance wherein the trial by appeal was instituted, that it was not for the sake of obtaining a sum of money; and it is part of the law that it may be reduced into such compensation, the whole being allowed to be a civil suit; but taking it in its utmost sense it is nothing but barbarism and cruelty; and I wish to abolish it as an improper part of that code of law for which we are so much famed.

Mr. T. Townshend. This is a question, Sir, which has frequently been before the House, and has as often been rejected. I cannot agree to the repeal in part, unless I hear reasons given for the abolition of the whole, or at least better arguments than those I have heard, to induce me to give my opinion to abolish that part which relates to America.

Mr. Cornwall. The appeal for murder, Sir, is incorporated in the law of England, either as a natural or political right. Is then, Sir, the redress of a particular injury to be remedied only by a sacrifice of the lives of others? Every body knows that manslaughter is a bar to appeal. But, Sir, can it be intended as a wise, political institution, that after a trial by jury, a single individual, to satisfy his revenge, may overturn the solemn judgment and verdict of a jury? It appears to me, upon examination, to be neither a political nor a natural right, and I should be sorry to give my negative to the clause.

Sir, to every man in America, the same kind of right that we enjoy ourselves; did they not carry with them all the privileges, laws, and liberties of this country? If they have a right to part of those laws, they have a right to the whole. I think the appeal for murder ought to be sacred in this country; and whatever doctrines gentlemen may imbibe from Mr. Blackstone, I cannot conceive them to be of that authority which ought to guide and direct us. There is not a more insidious way of gaining proselytes to his opinion than that dangerous pomp of quotations which he has practised; it conveys some of the most lurking doctrines to lead astray the minds of young men. To talk of the finger of nature pointing out law, is to me an absurdity; but I would not advise gentlemen to seek for law in the channels of these times. The rust of antiquity dims the sight of his readers; but if a man will open his eyes, he will find that the finger of nature will never point out the principle of law. The great argument which I dwell upon is, that the appeal for murder is the law of the land; I am also for preserving mercy in the crown; I think it the brightest jewel in it; but I think that it is a blight that will destroy all our harvest if it is without controul. I cannot, Sir, give my consent to this part of the law being annihilated.

Mr. Skynner. We are got now upon the most important question that can come on. I think the cause does not want advocates; and therefore it might be improper for me to give my opinion; but, Sir, it is no unnatural thing, that the death of a relation should be attempted to be redressed, and that the friends of the deMr. Moreton. I think the provisions of ceased should seek for justice. The apthe Bill right; but I did not apprehend peal for murder, Sir, is considered as a that the question would have been de- civil action, and to go on hand in hand bated in this manner; nor did I think that with the criminal prosecution; and surely, such an extent would have been in view; Sir, there is nothing, then, so exceedingly so that an example in future might have savage or barbarous in it, if it may be combeen brought of this, to attack one of the pensated by civil action. But let us congreatest pillars in this constitution, the sider how this will operate in the colonies; appeal for murder. If the prisoner is to let us consider in what manner this action be sent here, where is the use of taking can be brought; the Americans cannot the appeal away in America? I only make use of it unless their constitution wanted that you should not give a consti- allows it: a writ must first issue out of the tution of appeal for murder to the co-court of Chancery; but as they have no lonies, when in my own mind I am convinced they have it not, nor is it a part of their law; and as I think that they have no such power of appeal, I cannot vote for this clause.

Captain Phipps. I would wish to give,

such court in that country, it cannot take its rise there. A writ of this kind can only issue when the person is in the actual custody of the marshal. In the process which you have laid down in the Bill before us, bail is allowed to be taken for the

offence; so that he never can be actually in the custody of the marshal. Therefore, at present, as their constitution stands, I look upon the writ of an execution of appeal to be impossible there. The Americans will think that we are breaking into their civil rights; and I think it highly improper to introduce the appeal for murder in this instance, as it is not necessary. But, Sir, I cannot sit down with out saying a few words in defence of that able person alluded to, now a great magistrate, who has thought there is something in our constitution worth preserving. And sorry I am to hear that great and able writer has received any reproach or admonition in this senate; and I believe the hon. gentleman (captain Phipps) is singular in his opinion upon this head; and I am glad to find there are no strangers in the gallery,* for his own sake, to hear what he said. But, Sir, I am of a different opinion from that hon. gentleman; and I dare say the House will agree with me when I think that book one of the best that ever was written upon the laws of this constitution, and will do more honour to himself and this country than any that ever yet appeared; and I am sorry to hear him reproached even by an individual, when I am sure the greatest honour will redound to this country from that able performance.

Sir Richard Sutton. Sir, I do not think that the appeal for murder ought to be partially taken away; if you take it away from any part of the dominions, you should take it from the whole. I am much against the measure, because I think it vindictive and cruel.

Mr. Charles Fox. I am for taking away the appeal for murder entirely, but I am not for taking it away in part. If the appeal is allowed, you take away the power of pardoning in the crown. I look upon the power of pardon as much a right in the subject to claim, as part of the trial. Suppose a criminal should be tried and convicted, and he should appear to be out of his senses, in this case he is certainly not to be hanged, the pardon being the only mode of saving his life. Appeal for murder is the only instance in our laws in which satisfaction is allowed to the injured by the blood of another, as it may

* The standing order for the exclusion of strangers was strictly enforced during the progress of the three Bills relating to the disturbances in America.

be compensated by a sum of money. I shall vote against this clause, because I think the Americans have a right to the same laws as we have.

Captain Phipps rose to explain himself with regard to Mr. Blackstone, and said, however he might have represented his performance, he was glad to find it was so well defended by the warmth of friendship; that he had heard, and was sorry to hear, that book had undergone some regulations with regard to its eligibility, which he hoped was not true. He sat down rather chagrined to find his opinion with regard to that work was singular.

Sir George Savile. Sir, the appetite of revenge is, like that of hunger, never to be satisfied. There are certain rights which we bring into society which we give up for the good of the whole; the passion of revenge seems to be under that description; and in this instance only the blood of another may be compensated by civil action. But I will not contend that to be a civil suit which ends in hanging, which the appeal for murder does when not compensated for; but it is necessary that men should give up certain rights which they enjoy for the good of society at large. I would wish a fair and impar tial trial to be secured, which I think is already done in the colonies without meddling with the appeal for murder.

Mr. Skynner. Sir, I only rise to explain, that the appeal for murder may be reduced to a civil action; that there also lies an appeal in robbery and rape; and if the woman who had been injured, when the man was under the gallows to be hanged, should marry him, he would, by the ancient law, be saved, because all her civil right would be vested in her husband by that act, and therefore compensated for as such by that act she vests those civil rights, which he had deprived her of, in him as her husband.

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Mr. Wallace withdrew the clause for the appeal for murder.

Mr. R. Fuller. Sir, I am the more convinced by what I have heard to-day, that the whole law relative to the appeal for murder, ought to be repealed. I will therefore give notice, on some future day, when I shall make the motion.

Mr. Dunning desired to know, whether his learned friend (Mr. Wallace) had made any provision against a faulty indictment.

Mr. Wallace said, he had not, as he did not think it necessary; that if the prisoner

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returned, he might there be indicted again.

Mr. Dunning said, so, then, it is intended that the prisoner may go over again if he chuses."

Mr. Wallace then brought up a clause for continuing that Act for three years, to commence from the end of June next, and to the end of the next session of parliament after the three years. After which the Bill was ordered to be engrossed.

Petition of the Natives of America residing in London against the two Bills relating to the Government of Massachuset's Bay. May 2. Sir George Savile presented a Petition from several natives of America, complaining against the two Bills relative to Massachuset's Bay. The Petition was read, setting forth,

tion of justice in the province of Massachuset's Bay, empowers the governor to withdraw offenders from justice in the said province, holding out to the soldiery an exemption from legal prosecution for murder, and, in effect, subjecting that colony to military execution: the petitioners. entreat the House to consider what must be the consequence of sending troops, not really under the controul of the civil power, and unamenable to the law, among a people whom they have been industriously taught, by the incendiary arts of wicked men, to regard as deserving every species of insult and abuse; the insults and injuries of a lawless soldiery are such as no free people can long endure; and the petitioners apprehend, in the consequences of this Bill, the horrid outrages of military oppression, followed by the desolation of civil commotions; the dispensing "That the petitioners are again con- power which this Bill intends to give to strained to complain to the House of two the governor, advanced as he is already Bills, which, if carried into execution, will above the law, and not liable to any imbe fatal to the rights, liberties, and peace peachment from the people he may opof all America, and that the petitioners press, must constitute him an absolute have already seen, with equal astonish- tyrant; that the petitioners would be utment and grief, proceedings adopted terly unworthy of the English ancestry, against them, which, in violation of the which is their claim and pride, if they did first principles of justice, and of the laws not feel a virtuous indignation at the reof the land, inflict the severest punish- proach of disaffection and rebellion, with ments, without hearing the accused. which they have been cruely aspersed; Upon the same principle of injustice, a they can with confidence say, no imputaBill is now brought in, which, under the tion was ever less deserved; they appeal profession of better regulating the go-to the experience of a century, in which vernment of the Massachuset's Bay, is calculated to deprive a whole province, without any form of trial, of its chartered rights, solemnly secured to it by mutual compact between the crown and the people. The petitioners are well informed, that a charter so granted, was never be fore altered, or resumed, but upon a full and fair hearing; that therefore the present proceeding is totally unconstitutional, and sets an example which renders every charter in Great Britain and America ut terly insecure. The appointment and removal of the judges at the pleasure of a governor, with salaries payable by the crown, puts the property, liberty, and life of the subject, depending upon judicial integrity, in his power. The petitioners perceive a system of judicial tyranny deliberately at this day imposed upon them, which, from the bitter experience of its intolerable injuries, has been abolished in this country of the same unexampled and alarming nature is the Bill, which, under the title of a more impartial administra[VOL. XVII.]

the glory, the honour, the prosperity of England, has been, in their estimation, their own; in which they have not only borne the burden of provincial wars, but have shared with this country in the dangers and expences of every national war; their zeal for the service of the crown, and the defence of the general empire, has prompted them, whenever it was required, to vote supplies of men and money, to the utmost exertion of their abilities; the Journals of the House will bear witness to their extraordinary zeal and services during the last war, and that but a very short time before it was resolved here to take from them the right of giving and granting their own money. If disturbances have happened in the colonies, they entreat the House to consider the causes which have produced them, among a people hitherto remarkable for their loyalty to the crown, and affection for this kingdom; no history can shew, nor will human nature admit of, an instance of general discontent, but from a general sense of oppression: the [40]

petitioners conceived, that when they had acquired property, under all the restraints this country thought necessary to impose upon their commerce, trade, and manufactures, that property was sacred and secure; they felt a very material difference between being restrained in the acquisition of property, and holding it, when acquired under those restraints, at the disposal of others; they understand subordination in the one, and slavery in the other. The petitioners wish they could possibly perceive any difference between the most abject slavery, and such entire subjection to a legislature, in the constitution of which they have not a single voice, nor the least influence, and in which no one is present on their behalf; they regard the giving their property by their own consent alone, as the unalienable right of the subject, and the last sacred bulwark of constitutional liberty; if they are wrong in this, they have been misled by the love of liberty, which is their dearest birth-right, by the most solemn statutes, and the resolves of this House itself, declaratory of the inherent right of the subject; by the authority of all great constitutional writers, and by the uninterrupted practice of Ireland and America, who have ever voted their own supplies to the crown, all which combine to prove that the property of an English subject, being a freeman or freeholder, cannot be taken from him but by his own consent to deprive the colonies, therefore, of this right, is to reduce them to a state of vassalage, leaving them nothing they can call their own, nor capable of any acquisition but for the benefit of others. It is with infinite and inexpressible concern, that the petitioners see in these Bills, and in the principles of them, a direct tendency to reduce their countrymen to the dreadful alternative of being totally enslaved, or compelled into a contest the most shocking and unnatural with a parent state, which has ever been the object of their veneration and their love; they intreat the House to consider that the restraints which examples of such severity and injustice interpose, are ever attended with most dangerous hatred. In a distress of mind which cannot be described, the petitioners conjure the House not to convert that zeal and affection which have hitherto united every American hand and heart in the interests of England, into passions the most painful and pernicious; most earnestly they beseech the House not to attempt

reducing them to a state of slavery, which the English principles of liberty they inherit from their mother country will render worse than death; and therefore praying the House will not, by passing these Bills, overwhelm them with affliction, and reduce their countrymen to the most abject state of misery and humiliation, or drive them to the last resources of despair."

The Petition was ordered to lie on the table.

Further Debate in the Commons on the Bill for regulating the Government of Massachuset's Bay.] The order of the day was read for the third reading of this Bill.

Mr. Dunning. There seems to me to be a system of tyranny adopted throughout the whole of the three Bills which have been brought into this House, one of which is passed, and the other two are now under consideration. While the first proposition stood single, I mean the Boston Port Bill, I did not think it of sufficient magnitude to oppose it, till it was followed by these two others. It now appears to me, that the inhabitants of Boston are much in the same condition as prisoners surrendering at discretion, as it is in the power of the minister to allow or disallow the restoration of its port and trade. [He then gave a long history to the House of the manner in which the Bills had been moved for and brought in; he animadverted on the contents of the three Bills, and commented on the preamble of the Bill now before the House.] I have not, said he, heard of, nor do I see any overt act of treason stated in the preamble of this Bill, so as to authorise the severe punishments which it enacts: we are now, I find, in possession of the whole of that fatal secret, which was intended as a corrective for all the disturbances in America; but it does not appear to be either peace or the olive-branch-it is war, severe revenge, and hatred against our own subjects. We are now come to that fatal dilemma, resist, and we will cut your throats; submit, and we will tax you'-such is the reward of obedience. There appears to me nothing of a system or plan throughout the whole that has been adopted or intended, because the Bills have been so altered, in the committee, that there is scarce a word remaining of the original plan, if there was any; the preamble of the Bill now before us seems

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