was a pious and passionate prayer, but just as reasonable as many of the serious wishes of very grave and solemn politicians.

5

If then, Sir, it seems almost desperate to think of any alterative course for changing the moral causes (and not quite easy to remove the natural) which produce prejudices irreconcilable to the late exercise of our authority, but that the spirit infallibly will continue; and continuing, will produce such effects as now embarrass us, - the second mode under consideration is to prosecute that spirit in its overt 10 acts as criminal.

At this proposition I must pause a moment. The thing seems a great deal too big for my ideas of jurisprudence. It should seem to my way of conceiving such matters, that there is a very wide difference in reason and policy between 15 the mode of proceeding on the irregular conduct of scattered individuals, or even of bands of men, who disturb order within the state, and the civil dissensions which may, from time to time, on great questions, agitate the several communities which compose a great empire. It looks to me to be 20 narrow and pedantic to apply the ordinary ideas of criminal justice to this great public contest. I do not know the method of drawing up an indictment against a whole people. I cannot insult and ridicule the feelings of millions of my fellow-creatures, as Sir Edward Coke insulted one excellent 25 individual (Sir Walter Ralegh) at the bar. I am not ripe to pass sentence on the gravest public bodies, entrusted with magistracies of great authority and dignity, and charged with the safety of their fellow-citizens, upon the very same title that I am. I really think that for wise men this is not 30 judicious; for sober men, not decent; for minds tinctured with humanity, not mild and merciful.

Perhaps, Sir, I am mistaken in my idea of an empire as distinguished from a single state or kingdom. But my idea

57

58

of it is this that an empire is the aggregate of many states under one common head, whether this head be a monarch or a presiding republic. It does in such constitutions frequently happen (and nothing but the dismal, cold, dead uni5 formity of servitude can prevent its happening) that the subordinate parts have many local privileges and immunities. Between these privileges and the supreme common authority the line may be extremely nice. Of course disputes—often, too, very bitter disputes- and much ill blood will arise. But 10 though every privilege is an exemption (in the case) from the ordinary exercise of the supreme authority, it is no denial of it. The claim of a privilege seems rather, ex vi termini, to imply a superior power; for to talk of the privileges of a state, or of a person who has no superior, is hardly any 15 better than speaking nonsense. Now in such unfortunate

quarrels among the component parts of a great political union of communities, I can scarcely conceive anything more completely imprudent than for the head of the empire to insist that, if any privilege is pleaded against his will or 20 his acts, [that] his whole authority is denied; instantly to proclaim rebellion, to beat to arms, and to put the offending provinces under the ban. Will not this, Sir, very soon teach the provinces to make no distinctions on their part? Will it not teach them that the government against which a claim 25 of liberty is tantamount to high treason is a government to which submission is equivalent to slavery? It may not always be quite convenient to impress dependent communities with such an idea.

We are, indeed, in all disputes with the colonies, by the 30 necessity of things, the judge. It is true, Sir. But I confess that the character of judge in my own cause is a thing that frightens me. Instead of filling me with pride, I am exceedingly humbled by it. I cannot proceed with a stern, assured, judicial confidence, until I find myself in something more

CRIMINAL PROSECUTION INEXPEDIENT.

35

like a judicial character. long as I am compelled to recollect that, in my little reading upon such contests as these, the sense of mankind has at least as often decided against the superior as the subordinate power. Sir, let me add, too, that the opinion of my 5 having some abstract right in my favor would not put me much at my ease in passing sentence, unless I could be sure that there were no rights which, in their exercise under certain circumstances, were not the most odious of all wrongs and the most vexatious of all injustice. Sir, these considera- 10 tions have great weight with me, when I find things so circumstanced, that I see the same party at once a civil litigant against me in point of right and a culprit before me, while I sit as a criminal judge on acts of his, whose moral quality is to be decided upon the merits of that very litigation. 15 Men are every now and then put, by the complexity of human affairs, into strange situations; but justice is the same, let the judge be in what situation he will.

I must have these hesitations as

There is, Sir, also a circumstance which convinces me that this mode of criminal proceeding is not (at least in the 20 present stage of our contest) altogether expedient, which is nothing less than the conduct of those very persons who have seemed to adopt that mode, by lately declaring a rebellion in Massachusetts Bay, as they had formerly addressed to have traitors brought hither, under an act of Henry the 25 Eighth, for trial. For though rebellion is declared, it is not proceeded against as such; nor have any steps been taken towards the apprehension or conviction of any individual offender, either on our late or our former address; but modes of public coercion have been adopted, and such as have much 30 more resemblance to a sort of qualified hostility towards an independent power than the punishment of rebellious subjects. All this seems rather inconsistent; but it shows how difficult it is to apply these juridical ideas to our present case.

62

63

In this situation, let us seriously and coolly ponder. What is it we have got by all our menaces, which have been many and ferocious? What advantage have we derived from the penal laws we have passed, and which, for the time, have 5 been severe and numerous? What advances have we made towards our object, by the sending of a force which, by land and sea, is no contemptible strength? Has the disorder abated? Nothing less. When I see things in this situation, after such confident hopes, bold promises and active Io exertions, I cannot for my life avoid a suspicion that the plan itself is not correctly right.

If, then, the removal of the causes of this spirit of American liberty be for the greater part, or rather entirely, impracticable; if the ideas of criminal process be inapplicable, or 15 if applicable, are in the highest degree inexpedient; what way yet remains? No way is open but the third and last, to comply with the American spirit as necessary; or, if you please, to submit to it as a necessary evil.

If we adopt this mode, if we mean to conciliate and con64 20 cede, let us see of what nature the concession ought to be. To ascertain the nature of our concession, we must look at their complaint. The colonies complain that they have not the characteristic mark and seal of British freedom. They complain that they are taxed in a Parliament in which they 25 are not represented. If you mean to satisfy them at all, you must satisfy them with regard to this complaint. If you mean to please any people, you must give them the boon which they ask, not what you may think better for them, but of a kind totally different. Such an act may 30 a wise regulation, but it is no concession; whereas our present theme is the mode of giving satisfaction.

be

Sir, I think you must perceive that I am resolved this day to have nothing at all to do with the question of the right of taxation. Some gentlemen startle, but it is true;

NOT A QUESTION OF ABSTRACT RIGHT.

37

I put it totally out of the question. It is less than nothing in my consideration. I do not indeed wonder, nor will you, Sir, that gentlemen of profound learning are fond of displaying it on this profound subject. But my consideration is narrow, confined, and wholly limited to the policy of the 5 question. I do not examine whether the giving away a man's money be a power excepted and reserved out of the general trust of government; and how far all mankind, in all forms of polity, are entitled to an exercise of that right by the charter of Nature; or whether, on the contrary, a 10 right of taxation is necessarily involved in the general principle of legislation and inseparable from the ordinary supreme power. These are deep questions, where great names militate against each other; where reason is perplexed; and an appeal to authorities only thickens the confusion: for high 15 and reverend authorities lift up their heads on both sides; and there is no sure footing in the middle. This point is the great

Serbonian bog,

Betwixt Damiata and Mount Casius old,
Where armies whole have sunk.

20

I do not intend to be overwhelmed in that bog, though in such respectable company. The question with me is, not whether you have a right to render your people miserable, but whether it is not your interest to make them happy. It 25 is not what a lawyer tells me I may do, but what humanity, reason and justice tell me I ought to do. Is a politic act the worse for being a generous one? Is no concession proper but that which is made from your want of right to keep what you grant? Or does it lessen the grace or dig- 30 nity of relaxing in the exercise of an odious claim, because you have your evidence-room full of titles and your magazines stuffed with arms to enforce them? What signify all those titles and all those arms? Of what avail are they, when