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The Works of the Right Honourable Edmund Burke, Vol. II. (of 12) by Edmund Burke

E >> Edmund Burke >> The Works of the Right Honourable Edmund Burke, Vol. II. (of 12)




Besides, I must honestly tell you that I could not vote for, or
countenance in any way, a statute which stigmatizes with the crime of
piracy these men whom an act of Parliament had previously put out of the
protection of the law. When the legislature of this kingdom had ordered
all their ships and goods, for the mere new-created offence of
exercising trade, to be divided as a spoil among the seamen, of the
navy,--to consider the necessary reprisal of an unhappy, proscribed,
interdicted people, as the crime of piracy, would have appeared, in any
other legislature than ours, a strain of the most insulting and most
unnatural cruelty and injustice. I assure you I never remember to have
heard of anything like it in any time or country.

The second professed purpose of the act is to detain in England for
trial those who shall commit high treason in America.

That you may be enabled to enter into the true spirit of the present
law, it is necessary, Gentlemen, to apprise you that there is an act,
made so long ago as in the reign of Henry the Eighth, before the
existence or thought of any English colonies in America, for the trial
in this kingdom of treasons committed out of the realm. In the year 1769
Parliament thought proper to acquaint the crown with their construction
of that act in a formal address, wherein they entreated his Majesty to
cause persons charged with high treason in America to be brought into
this kingdom for trial. By this act of Henry the Eighth, _so construed
and so applied_, almost all that is substantial and beneficial in a
trial by jury is taken away from the subject in the colonies. This is,
however, saying too little; for to try a man under that act is, in
effect, to condemn him unheard. A person is brought hither in the
dungeon of a ship's hold; thence he is vomited into a dungeon on land,
loaded with irons, unfurnished with money, unsupported by friends, three
thousand miles from all means of calling upon or confronting evidence,
where no one local circumstance that tends to detect perjury can
possibly be judged of;--such a person may be executed according to form,
but he can never be tried according to justice.

I therefore could never reconcile myself to the bill I send you, which
is expressly provided to remove all inconveniences from the
establishment of a mode of trial which has ever appeared to me most
unjust and most unconstitutional. Far from removing the difficulties
which impede the execution of so mischievous a project, I would heap new
difficulties upon it, if it were in my power. All the ancient, honest,
juridical principles and institutions of England are so many clogs to
check and retard the headlong course of violence and oppression. They
were invented for this one good purpose, that what was not just should
not be convenient. Convinced of this, I would leave things as I found
them. The old, cool-headed, general law is as good as any deviation
dictated by present heat.

I could see no fair, justifiable expedience pleaded to favor this new
suspension of the liberty of the subject. If the English in the colonies
can support the independency to which they have been unfortunately
driven, I suppose nobody has such a fanatical zeal for the criminal
justice of Henry the Eighth that he will contend for executions which
must be retaliated tenfold on his own friends, or who has conceived so
strange an idea of English dignity as to think the defeats in America
compensated by the triumphs at Tyburn. If, on the contrary, the colonies
are reduced to the obedience of the crown, there must be, under that
authority, tribunals in the country itself fully competent to administer
justice on all offenders. But if there are not, and that we must
suppose a thing so humiliating to our government as that all this vast
continent should unanimously concur in thinking that no ill fortune can
convert resistance to the royal authority into a criminal act, we may
call the effect of our victory peace, or obedience, or what we will, but
the war is not ended; the hostile mind continues in full vigor, and it
continues under a worse form. If your peace be nothing more than a
sullen pause from arms, if their quiet be nothing but the meditation of
revenge, where smitten pride smarting from its wounds festers into new
rancor, neither the act of Henry the Eighth nor its handmaid of this
reign will answer any wise end of policy or justice. For, if the bloody
fields which they saw and felt are not sufficient to subdue the reason
of America, (to use the expressive phrase of a great lord in office,) it
is not the judicial slaughter which is made in another hemisphere
against their universal sense of justice that will ever reconcile them
to the British government.

I take it for granted, Gentlemen, that we sympathize in a proper horror
of all punishment further than as it serves for an example. To whom,
then does the example of an execution in England for this American
rebellion apply? Remember, you are told every day, that the present is a
contest between the two countries, and that we in England are at war for
_our own_ dignity against our rebellious children. Is this true? If it
be, it is surely among such rebellious children that examples for
disobedience should be made, to be in any degree instructive: for who
ever thought of teaching parents their duty by an example from the
punishment of an undutiful son? As well might the execution of a
fugitive negro in the plantations be considered as a lesson to teach
masters humanity to their slaves. Such executions may, indeed, satiate
our revenge; they may harden our hearts, and puff us up with pride and
arrogance. Alas! this is not instruction.

If anything can be drawn from such examples by a parity of the case, it
is to show how deep their crime and how heavy their punishment will be,
who shall at any time dare to resist a distant power actually disposing
of their property without their voice or consent to the disposition, and
overturning their franchises without charge or hearing. God forbid that
England should ever read this lesson written in the blood of _any_ of
her offspring!

War is at present carried on between the king's natural and foreign
troops, on one side, and the English in America, on the other, upon the
usual footing of other wars; and accordingly an exchange of prisoners
has been regularly made from the beginning. If, notwithstanding this
hitherto equal procedure, upon some prospect of ending the war with
success (which, however, may be delusive) administration prepares to act
against those as _traitors_ who remain in their hands at the end of the
troubles, in my opinion we shall exhibit to the world as indecent a
piece of injustice as ever civil fury has produced. If the prisoners who
have been exchanged have not by that exchange been _virtually pardoned_,
the cartel (whether avowed or understood) is a cruel fraud; for you have
received the life of a man, and you ought to return a life for it, or
there is no parity or fairness in the transaction.

If, on the other hand, we admit that they who are actually exchanged
are pardoned, but contend that you may justly reserve for vengeance
those who remain unexchanged, then this unpleasant and unhandsome
consequence will follow: that you judge of the delinquency of men merely
by the time of their guilt, and not by the heinousness of it; and you
make fortune and accidents, and not the moral qualities of human action,
the rule of your justice.

These strange incongruities must ever perplex those who confound the
unhappiness of civil dissension with the crime of treason. Whenever a
rebellion really and truly exists, which is as easily known in fact as
it is difficult to define in words, government has not entered into such
military conventions, but has ever declined all intermediate treaty
which should put rebels in possession of the law of nations with regard
to war. Commanders would receive no benefits at their hands, because
they could make no return for them. Who has ever heard of capitulation,
and parole of honor, and exchange of prisoners in the late rebellions in
this kingdom? The answer to all demands of that sort was, "We can engage
for nothing; you are at the king's pleasure." We ought to remember,
that, if our present enemies be in reality and truth rebels, the king's
generals have no right to release them upon any conditions whatsoever;
and they are themselves answerable to the law, and as much in want of a
pardon, for doing so, as the rebels whom they release.

Lawyers, I know, cannot make the distinction for which I contend;
because they have their strict rule to go by. But legislators ought to
do what lawyers cannot; for they have no other rules to bind them but
the great principles of reason and equity and the general sense of
mankind. These they are bound to obey and follow, and rather to enlarge
and enlighten law by the liberality of legislative reason than to fetter
and bind their higher capacity by the narrow constructions of
subordinate, artificial justice. If we had adverted to this, we never
could consider the convulsions of a great empire, not disturbed by a
little disseminated faction, but divided by whole communities and
provinces, and entire legal representatives of a people, as fit matter
of discussion under a commission of Oyer and Terminer. It is as opposite
to reason and prudence as it is to humanity and justice.

This act, proceeding on these principles, that is, preparing to end the
present troubles by a trial of one sort of hostility under the name of
piracy, and of another by the name of treason, and executing the act of
Henry the Eighth according to a new and unconstitutional interpretation,
I have thought evil and dangerous, even though the instruments of
effecting such purposes had been merely of a neutral quality.

But it really appears to me that the means which this act employs are at
least as exceptionable as the end. Permit me to open myself a little
upon this subject; because it is of importance to me, when I am obliged
to submit to the power without acquiescing in the reason of an act of
legislature, that I should justify my dissent by such arguments as may
be supposed to have weight with a sober man.

The main operative regulation of the act is to suspend the Common Law
and the statute _Habeas Corpus_ (the sole securities either for liberty
or justice) with regard to all those who have been out of the realm, or
on the high seas, within a given time. The rest of the people, as I
understand, are to continue as they stood before.

I confess, Gentlemen, that this appears to me as bad in the principle,
and far worse in its consequence, than an universal suspension of the
_Habeas Corpus_ Act; and the limiting qualification, instead of taking
out the sting, does in my humble opinion sharpen and envenom it to a
greater degree. Liberty, if I understand it at all, is a _general_
principle, and the clear right of all the subjects within the realm, or
of none. Partial freedom seems to me a most invidious mode of slavery.
But, unfortunately, it is the kind of slavery the most easily admitted
in times of civil discord: for parties are but too apt to forget their
own future safety in their desire of sacrificing their enemies. People
without much difficulty admit the entrance of that injustice of which
they are not to be the immediate victims. In times of high proceeding it
is never the faction of the predominant power that is in danger: for no
tyranny chastises its own instruments. It is the obnoxious and the
suspected who want the protection of law; and there is nothing to bridle
the partial violence of state factions but this,--"that, whenever an act
is made for a cessation of law and justice, the whole people should be
universally subjected to the same suspension of their franchises." The
alarm of such a proceeding would then be universal. It would operate as
a sort of _call of the nation_. It would become every man's immediate
and instant concern to be made very sensible of _the absolute necessity_
of this total eclipse of liberty. They would more carefully advert to
every renewal, and more powerfully resist it. These great determined
measures are not commonly so dangerous to freedom. They are marked with
too strong lines to slide into use. No plea, nor pretence, of
_inconvenience or evil example_ (which must in their nature be daily
and ordinary incidents) can be admitted as a reason for such mighty
operations. But the true danger is when liberty is nibbled away, for
expedients, and by parts. The _Habeas Corpus_ Act supposes, contrary to
the genius of most other laws, that the lawful magistrate may see
particular men with a malignant eye, and it provides for that identical
case. But when men, in particular descriptions, marked out by the
magistrate himself, are delivered over by Parliament to this possible
malignity, it is not the _Habeas Corpus_ that is occasionally suspended,
but its spirit that is mistaken, and its principle that is subverted.
Indeed, nothing is security to any individual but the common interest of
all.

This act, therefore, has this distinguished evil in it, that it is the
first _partial_ suspension of the _Habeas Corpus_ that has been made.
The precedent, which is always of very great importance, is now
established. For the first time a distinction is made among the people
within this realm. Before this act, every man putting his foot on
English ground, every stranger owing only a local and temporary
allegiance, even negro slaves who had been sold in the colonies and
under an act of Parliament, became as free as every other man who
breathed the same air with them. Now a line is drawn, which may be
advanced further and further at pleasure, on the same argument of mere
expedience on which it was first described. There is no equality among
us; we are not fellow-citizens, if the mariner who lands on the quay
does not rest on as firm legal ground as the merchant who sits in his
counting-house. Other laws may injure the community; this dissolves it.
As things now stand, every man in the West Indies, every one inhabitant
of three unoffending provinces on the continent, every person coming
from the East Indies, every gentleman who has travelled for his health
or education, every mariner who has navigated the seas, is, for no other
offence, under a temporary proscription. Let any of these facts (now
become presumptions of guilt) be proved against him, and the bare
suspicion of the crown puts him out of the law. It is even by no means
clear to me whether the negative proof does not lie upon the person
apprehended on suspicion, to the subversion of all justice.

I have not debated against this bill in its progress through the House;
because it would have been vain to oppose, and impossible to correct it.
It is some time since I have been clearly convinced, that, in the
present state of things, all opposition to any measures proposed by
ministers, where the name of America appears, is vain and frivolous. You
may be sure that I do not speak of my opposition, which in all
circumstances must be so, but that of men of the greatest wisdom and
authority in the nation. Everything proposed against America is supposed
of course to be in favor of Great Britain. Good and ill success are
equally admitted as reasons for persevering in the present methods.
Several very prudent and very well-intentioned persons were of opinion,
that, during the prevalence of such dispositions, all struggle rather
inflamed than lessened the distemper of the public counsels. Finding
such resistance to be considered as factious by most within doors and by
very many without, I cannot conscientiously support what is against my
opinion, nor prudently contend with what I know is irresistible.
Preserving my principles unshaken, I reserve my activity for rational
endeavors; and I hope that my past conduct has given sufficient
evidence, that, if I am a single day from my place, it is not owing to
indolence or love of dissipation. The slightest hope of doing good is
sufficient to recall me to what I quitted with regret In declining for
some time my usual strict attendance, I do not in the least condemn the
spirit of those gentlemen who, with a just confidence in their
abilities, (in which I claim a sort of share from my love and admiration
of them,) were of opinion that their exertions in this desperate case
might be of some service. They thought that by contracting the sphere of
its application they might lessen the malignity of an evil principle.
Perhaps they were in the right. But when my opinion was so very clearly
to the contrary, for the reasons I have just stated, I am sure _my_
attendance would have been ridiculous.

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

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

Nor is it the worst effect of this unnatural contention, that our _laws_
are corrupted. Whilst _manners_ remain entire, they will correct the
vices of law, and soften it at length to their own temper. But we have
to lament that in most of the late proceedings we see very few traces of
that generosity, humanity, and dignity of mind, which formerly
characterized this nation. War suspends the rules of moral obligation,
and what is long suspended is in danger of being totally abrogated.
Civil wars strike deepest of all into the manners of the people. They
vitiate their politics; they corrupt their morals; they pervert even the
natural taste and relish of equity and justice. By teaching us to
consider our fellow-citizens in an hostile light, the whole body of our
nation becomes gradually less dear to us. The very names of affection
and kindred, which were the bond of charity whilst we agreed, become new
incentives to hatred and rage when the communion of our country is
dissolved. We may flatter ourselves that we shall not fall into this
misfortune. But we have no charter of exemption, that I know of, from
the ordinary frailties of our nature.

What but that blindness of heart which arises from the frenzy of civil
contention could have made any persons conceive the present situation of
the British affairs as an object of triumph to themselves or of
congratulation to their sovereign? Nothing surely could be more
lamentable to those who remember the flourishing days of this kingdom
than to see the insane joy of several unhappy people, amidst the sad
spectacle which our affairs and conduct exhibit to the scorn of Europe.
We behold (and it seems some people rejoice in beholding) our native
land, which used to sit the envied arbiter of all her neighbors, reduced
to a servile dependence on their mercy,--acquiescing in assurances of
friendship which she does not trust,--complaining of hostilities which
she dares not resent,--deficient to her allies, lofty to her subjects,
and submissive to her enemies,--whilst the liberal government of this
free nation is supported by the hireling sword of German boors and
vassals, and three millions of the subjects of Great Britain are seeking
for protection to English privileges in the arms of France!

These circumstances appear to me more like shocking prodigies than
natural changes in human affairs. Men of firmer minds may see them
without staggering or astonishment. Some may think them matters of
congratulation and complimentary addresses; but I trust your candor will
be so indulgent to my weakness as not to have the worse opinion of me
for my declining to participate in this joy, and my rejecting all share
whatsoever in such a triumph. I am too old, too stiff in my inveterate
partialities, to be ready at all the fashionable evolutions of opinion.
I scarcely know how to adapt my mind to the feelings with which the
Court Gazettes mean to impress the people. It is not instantly that I
can be brought to rejoice, when I hear of the slaughter and captivity of
long lists of those names which have been familiar to my ears from my
infancy, and to rejoice that they have fallen under the sword of
strangers, whose barbarous appellations I scarcely know how to
pronounce. The glory acquired at the White Plains by Colonel Rahl has no
charms for me, and I fairly acknowledge that I have not yet learned to
delight in finding Fort Kniphausen in the heart of the British
dominions.

It might be some consolation for the loss of our old regards, if our
reason were enlightened in proportion as our honest prejudices are
removed. Wanting feelings for the honor of our country, we might then in
cold blood be brought to think a little of our interests as individual
citizens and our private conscience as moral agents.

Indeed, our affairs are in a bad condition. I do assure those gentlemen
who have prayed for war, and obtained the blessing they have sought,
that they are at this instant in very great straits. The abused wealth
of this country continues a little longer to feed its distemper. As yet
they, and their German allies of twenty hireling states, have contended
only with the unprepared strength of our own infant colonies. But
America is not subdued. Not one unattacked village which was originally
adverse throughout that vast continent has yet submitted from love or
terror. You have the ground you encamp on, and you have no more. The
cantonments of your troops and your dominions are exactly of the same
extent. You spread devastation, but you do not enlarge the sphere of
authority.

The events of this war are of so much greater magnitude than those who
either wished or feared it ever looked for, that this alone ought to
fill every considerate mind with anxiety and diffidence. Wise men often
tremble at the very things which fill the thoughtless with security. For
many reasons I do not choose to expose to public view all the
particulars of the state in which you stood with regard to foreign
powers during the whole course of the last year. Whether you are yet
wholly out of danger from them is more than I know, or than your rulers
can divine. But even if I were certain of my safety, I could not easily
forgive those who had brought me into the most dreadful perils, because
by accidents, unforeseen by them or me, I have escaped.

Believe me, Gentlemen, the way still before you is intricate, dark, and
full of perplexed and treacherous mazes. Those who think they have the
clew may lead us out of this labyrinth. We may trust them as amply as we
think proper; but as they have most certainly a call for all the reason
which their stock can furnish, why should we think it proper to disturb
its operation by inflaming their passions? I may be unable to lend an
helping hand to those who direct the state; but I should be ashamed to
make myself one of a noisy multitude to halloo and hearten them into
doubtful and dangerous courses. A conscientious man would be cautious
how he dealt in blood. He would feel some apprehension at being called
to a tremendous account for engaging in so deep a play without any sort
of knowledge of the game. It is no excuse for presumptuous ignorance,
that it is directed by insolent passion. The poorest being that crawls
on earth, contending to save itself from injustice and oppression, is an
object respectable in the eyes of God and man. But I cannot conceive any
existence under heaven (which in the depths of its wisdom tolerates all
sorts of things) that is more truly odious and disgusting than an
impotent, helpless creature, without civil wisdom or military skill,
without a consciousness of any other qualification for power but his
servility to it, bloated with pride and arrogance, calling for battles
which he is not to fight, contending for a violent dominion which he can
never exercise, and satisfied to be himself mean and miserable, in order
to render others contemptible and wretched.

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