184 Courts of Admiralty [1765 States to maintain a body of militia, and to have command of it when not employed in the service of the United States; as Great Britain had done in the colonial time. (ii) DISCRIMINATING LEGISLATION Of discriminating legislation there was much concerning which no serious complaint was made. The subordination of the colonies implied some discrimination against them, according to theories of government prevailing in the eighteenth century and admitted by the colonies. What was understood by "regulation of trade," that is, of external and inter-colonial trade, was the ever-present example. The colonies must not trade with foreign countries, except as permitted by government; they were subject to trade-duties peculiar to them as colonies. But there was somewhere a limit beyond which it was agreed discrimination. ought not to go; to pass that limit was to violate legal right. Where was the limit? No general answer was given; no one indeed contended that there was any fixed boundary line; each case was treated as standing more or less by itself. The American contention then, arising out of particular cases, was simply this :-assuming, or waiving the question of, the authority of Great Britain, authority had been exercised so as to discriminate unduly against America. Leaving for later consideration questions whether certain complaints belong to this head or to another, and taking up none but admitted cases, the first thing to be noticed must be the legislation touching the jurisdiction of the colonial Courts of Admiralty. Complaint was five-fold. First, it was complained that the revenue jurisdiction of the Courts of Admiralty in America, which theretofore had been local, had now been extended, for every Court, over the entire coast of the colonies. Secondly, that jurisdiction had been given to the colonial Courts of Admiralty in matters beyond the jurisdiction of the Admiralty in England, namely in matters of the common law; whereby Americans had, so far, been deprived of the Englishman's right of trial by jury. Thirdly, that, while in England damages could, in case of acquittal, be recovered against officers who seized goods, in America no action could be maintained if the judge in Admiralty would only certify that there had been probable cause for the seizure. Fourthly, that the judge in Admiralty held office at the pleasure of the Crown, instead of during good behaviour as in England. Fifthly, that the judge was paid in fees, a large percentage being payable to him for every condemnation of goods, much larger than in cases of acquittal. The complaints of political bodies usually took the form of resolutions or declarations, without stated argument. The Stamp Act, and other Acts of Parliament so the Stamp Act Congress declared, in October 1765"by extending the jurisdiction of the Courts of Admiralty 1765] Extension of Admiralty jurisdiction 185 beyond its ancient limits, have a manifest tendency to subvert the rights and liberties of the colonists." "Trial by jury is the inherent and invaluable right of every British subject in these colonies." Trial by jury in these cases of the revenue so said the address to the King, on the same occasion-is a security against the arbitrary decisions of the executive. His Majesty's subjects in America are required to submit to the determination of a single judge, in a Court not restrained by the wise rules of the common law, the birthright of Englishmen and the safeguard of their persons and property. The colonies have the misfortune to find, said the address to the House of Commons, that all the penalties and forfeitures mentioned in the Stamp Act and other late Acts are, at the election of the informers, recoverable in any Court of Admiralty in America. A newly-elected Court of Admiralty has general jurisdiction over all British America, so that his Majesty's subjects are liable to be carried at the greatest expense from one end of the continent to the other. It is painful to see such a distinction made between the subjects of England and the colonies; there the like penalties and forfeitures are recoverable only in his Majesty's Courts of Record (i.e. the common law Courts). Individual leaders also took part in the matter, in newspapers and pamphlets. Governor Hopkins dwelt upon the territorial extension of jurisdiction. Goods lawfully imported may now be seized in Georgia and carried to Halifax, for trial there; and if the judge can be prevailed upon to certify that there was probable cause for the seizure, the unhappy owner, if he has followed his goods, may return to Georgia quite ruined. The power given to Courts of Admiralty, said Thacher, who with Otis had argued against the writs of assistance, alarms the people. The common law is the birthright of every subject; trial by jury is a darling privilege. It was so long before the colonies were planted; our ancestors had many struggles against attempts of the Court of Admiralty to inundate the land. What chance has the subject for his rights when the judge is to have a hundred or perhaps five hundred pounds for condemning, and less than twenty shillings upon an acquittal the judge too acting alone, without a jury? Worse than that, the seizor may at his pleasure inform in any Court of Admiralty in the particular colony, or wherever in America a Court may sit. Thus a malicious seizor may take any man's goods, however lawfully imported, and carry the trial a thousand miles away, and the owner shall lose his right from sheer inability to follow. The Act of Parliament makes other distinctions. In Great Britain no jurisdiction is given to any other than the common law Courts; and there the subject is near the throne, and can soon be heard. In England the officer seizes goods at his peril; if the goods are not liable to forfeiture, the seizor must pay the claimant his costs, and is besides liable to an action for damages. - 186 Extension defended. The Stamp Act [1765-89 These complaints were answered by the English Ministry, by judges, and by loyalists. The Stamp Act itself, it was pointed out, had recognised the grievances and proposed a suitable remedy. It contained a clause providing for the creation of such a number of Courts of ViceAdmiralty as would bring trials within the reach of every subject in America. In the execution of that purpose the then Commissioners of the Treasury had in fact formed and submitted to the Privy Council a plan for creating three such Courts, with proper districts, and with ample fixed salaries for the judges, in lieu of all fees. But the repeal of the Stamp Act followed; "and the Americans will owe the grievances which they suffer from the present situation and constitution of the Court of Admiralty to the administration which" caused the repeal. The extension of jurisdiction of the colonial Admiralty over matters of the common law was itself justified, as the ministry, Crown judges, and loyalists held, on the ground of necessity. "The reason for putting these causes," arising under the Stamp Act, "in a course of trial without any jury undoubtedly arose from an apprehension that juries in these cases were not to be trusted." The force of that reason might be abated, it could not be wholly destroyed; no candid man would "take it upon him to declare that at this time an American jury is impartial and indifferent enough to determine upon frauds in trade." It was declared to be "notorious that smuggling had well-nigh become established in some of the colonies." "The way to Holland and back was well-known"; and then Whig and smuggler had been "playing into each other's hands." Smuggler had been protected by Whig, Whig in turn had been supported by smuggler, bitterly observed a New England loyalist-with truth, if not with the whole truth. "What," said another, "could the government do but apply a remedy as desperate as the disease?" No definition of Admiralty jurisdiction was given in any of the American constitutions. The subject was probably referred to in certain provisions of State constitutions, or bills of right, that "in controversies respecting property " trial by jury was "preferable to any other," or was matter of "right" except where it had been "otherwise used and practiced." The seventh amendment (passed in 1789) to the Constitution of the United States provides that "in suits at common law, where the controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." Great difficulty was found in the Federal Convention in fixing jury trials, in civil cases, through the States; and the subject was finally dropped, and left to the States. As for Admiralty powers, the Federal Constitution simply declares that "The judicial power of the United States shall extend. . . to all cases of Admiralty and maritime jurisdiction." The Courts therefore were to determine what that was. Rights of action for damages for improper seizure of goods under revenue laws (to be passed) were left for legislation and the Courts. Judges of the federal Courts were to hold office during good 1774] Treason and jury trial 187 behaviour, and to receive fixed salaries without fees. Such, altogether, was the net constitutional result, federal and State. The trouble which arose over the determination to take Americans accused of treason to England for trial, is a shorter matter. Orders had gone forth for closing the port of Boston; and, in anticipation of resistance, riots, and bloodshed in enforcing the same, the legislation in question had been passed by Parliament. It had lately been resolved in Parliament, said the Continental Congress of Philadelphia in the autumn of 1774, that by force of a statute of the time of Henry VIII, colonists may be transported to England and tried there upon accusation for treason and misprisions, or concealment of treason, committed in the colonies; and by a late statute such trials had been directed in cases therein mentioned. Against this and other new legislation affecting Massachusetts, it was resolved that at the time of the emigration the colonists were entitled to all the rights, liberties, and immunities of free natural born subjects within England; that they had not, by their emigration, forfeited, surrendered, or lost any of those rights; and that their descendants were still entitled to exercise and enjoy the same so far as circumstances enabled them to do so. Accordingly, the colonies were entitled to the common law of England, and more especially to the great and inestimable privilege of being tried for crime by their peers of the vicinage, by the course of that law. The legislation in question was unjust, unconstitutional, destructive of the rights of Americans. saw. Necessity was of course the justification urged. Boston juries could not be depended upon to convict Boston citizens of crime in resisting officers of the British government, or to acquit officers under indictment for acts done by them in the discharge of their duty; to which sarcasm might reply, that British juries could be depended upon to convict in the one case and acquit in the other, for want of witnesses who heard and Men accused of crime in Massachusetts must be tried by a Massachusetts jury, not merely because British juries would be apt to be prejudiced against them for what they had done against natives of England, but because witnesses in favour of the accused would not be present at the trial there, or if present would probably be overawed. So Americans maintained; and that view passed into the State constitutions and then into the sixth amendment to the Constitution of the United States. (iii) INTERFERENCE UNDER CLAIM OF UNIVERSAL AUTHORITY The great dispute between the colonies and Great Britain was of the true relation between the two parts of the British empire. Parliament, first distinctly claiming the right to tax the colonies for the support 188 Universal authority of Parliament denied [1774 of the empire upon the close of the French war in America, shortly afterwards put the claim of right, plainly following on the first position, universally; Parliament had the right to legislate for the colonies, "in all cases whatsoever." As the first claim was denied in the colonies, so still more, of course, was the second. Thus was raised one of the greatest issues of legal right which has ever stirred the English race. Well for the world that there were men in America equal to their part in it; for the dispute was of a kind to affect the history of the world; the future of distant and foreign races, as well as of all those of English blood, might be turned by it. During all the time embraced in the troubles now under consideration, all Americans, Whigs or "patriots," with few expections, as well as Tories or "loyalists," were devoted to the colonial relation. The stand taken by the Whigs against the mother-country was taken accordingly; and it should be distinctly observed that their opposition to the policy adopted by the British government was the opposition of colonists, seeking their ends for the colonies as such. In other words, their theory of rights was a theory of the colonial relation between Great Britain and her American possessions, the thirteen colonies; they believed it to be the true theory of rights touching that relation. The sincerity of the professions of loyalty by the Whig or generally dominant party in the colonies was indeed doubted in England and sneered at by the Tories in America; but the profession was stoutly made throughout the time in question, and there is evidence enough that it was made with sincerity. But even if it were true that the Whigs were already bent upon separation, the basis of their contention was the colonial relation; and the subject must be considered upon the ground upon which it was put. The Continental Congress of September, 1774, put the claim of exemption of the colonies from the general authority of Parliament on three grounds of legal right, to wit, rights fixed (a) by the "immutable laws" of human nature, (b) by the British Constitution, and (c) by the colonial charters. How was the claim supported? How was it opposed in America, that is by the loyalists? The several grounds will be considered in order, by way of answer. First, then, of the laws of nature. (a) Laws of Nature The contention on this point, beginning with the Stamp Act troubles, in 1764, was, that the rights of the colonists were not all or chiefly derived from the sovereign power of Great Britain, or from Great Britain in any way. Rights were not necessarily created by legislatures or by municipal law; they were not necessarily created at all. The greatest rights were original, inherent in man; they arose from law indeed, but from that law only which, through the social instinct, draws |