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Massachusettensis VIIII


 

Massachusettensis

 

LETTER IX.

 

To the Inhabitants of the Province of Massachusetts-Bay.


WHEN we reflect upon the constitutional connection between Great-Britain and the colonies, view the reciprocation of interest, consider that the welfare of Britain in some measure, and the prosperity of America wholly, depends upon that connection; it is astonishing, indeed almost incredible, that one person should be found on either side of the Atlantic, so base and destitute of every sentiment of justice, as to attempt to destroy or weaken it. If there are none such, in the name of Almighty God, let me ask; wherefore is rebellion, that implacable fiend to society, suffered to rear its ghastly front among us, blasting with haggard look each social joy, and embittering every hour?


Rebellion is the most atrocious offence that can be perpetrated by man, save those which are committed more immediately against the supreme Governor of the universe, who is the avenger of his own cause. It dissolves the social band, annihilates the security resulting from law and government, introduces fraud, violence, rapine, murder, sacrilege, and the long train of evils that riot uncontrouled in a state of nature. Allegiance and protection are reciprocal. The subject is bound by the compact to yield obedience to government, and in return is entitled to protection from it. Thus the poor are protected against the rich, the weak against the strong, the individual against the many; and this protection is guaranteed to each member, by the whole community: but when government is laid prostrate, a state of war of all against all commences; might overcomes right; innocence itself has no security, unless the individual sequesters himself from his fellowmen, inhabits his own cave, and seeks his own prey. This is what is called a state of nature. I once thought it chimerical.


The punishment, inflicted upon rebels and traitors in all states, bears some proportion to the aggravated crime. By our law the punishment is, ‘That the offender be drawn to the gallows, and not be carried or walk; that he be hanged by the neck, and then cut down alive, that his entrails be taken out and burned while he is yet alive, that his head be cut off, that his body be divided into four parts, that his head and quarters be at the King’s disposal.’ The consequences of attainder are forfeiture and corruption of blood.


‘Forfeiture is twofold, of real and of personal estate; by attainder in high treason a man forfeits to the King all his lands and tenements of inheritance, whether fee simple or fee tail, and all his rights of entry on lands and tenements, which he had at the time of the offence committed, or at any time afterwards, to be for ever vested in the crown. The forfeiture relates back to the time of the treason being committed, so as to avoid all intermediate sales and incumbrances; even the dower of the wife is forfeited. The natural justice of forfeiture or confiscation of property, for treason, is founded in this consideration, that he, who has thus violated the fundamental principles of government, and broken his part of the original contract between King and people, hath abandoned his connections with society, and hath no longer any right to those advantages which before belonged to him, purely as a member of the community; among which social advantages the right of transferring or transmitting property to others, is one of the chief. Such forfeitures, moreover, whereby his posterity must suffer as well as himself, will help to restrain a man, not only by the sense of his duty and dread of personal punishment, but also by his passions and natural affections; and will influence every dependent and relation he has to keep him from offending.’ 4 Black. 374. 375.


It is remarkable however, that this offence, notwithstanding it is of a crimson colour and of the deepest dye, and its just punishment is not consined to the person of the offender, but beggars all his family, is sometimes committed by persons who are not conscious of guilt: Sometimes they are ignorant of the law, and do not foresee the evils they bring upon society; at others, they are induced to think that their cause is founded in the eternal principles of justice and truth, that they are only making an appeal to heaven, and may justly expect its decree in their favour. Doubtless, many of the rebels in the year 1745 were buoyed up with such sentiments: nevertheless they were cut down like grass before the scythe of the mower; the gibber and scassold received those that the sword, wearied with destroying, had spared; and what loyalist shed one pitying tear over their graves? They were incorrigible rebels, and deserved their fate. The community is in less danger when the disaffected attempt to excite a rebellion against the person of the Prince, than when government itself is the object; because in the former case the questions are few, simple, and their solutions obvious, the fatal consequences more apparent, and the loyal people more alert to suppress it in embryo: whereas, in the latter, a hundred rights of the people, inconsistent with government, and as many grievances, destitute of foundation, the mere creatures of distempered brains, are pourtrayed in the liveliest colours, and serve as bug-bears to affright from their duty, or as decoys to allure the ignorant, the credulous and the unwary to their destruction. Their suspicions are drowned in the perpetual roar for liberty and country; and even the professions of allegiance to the person of the King, are improved as means to subvert his government.


In mentioning high-treason in the course of these papers, I may not always have expressed myself with the precision of the lawyers; they have a language peculiar to themselves: I have examined their books, and beg leave to lay before you some further extracts which deserve your attention: ‘To levy war against the King, was high-treason by the common law, 3 inst. 9. This is also declared to be high-treason by the stat. of 25 Ed. 3. c. 2. and by the law of this province, 8 W. 3. c. 5.—Assembling in warlike array, against a statute, is levying war against the King, 1 Hale 133. So, to destroy any trade generally, 146. riding with banners displayed, or forming into companies—or being furnished with military officers—or armed with military weapons, as swords, guns, &c. any one of these circumstances carries the speciem belli, and will support an indictment for high-treason in levying war, 150 —An insurrection to raise the price of servants wages was held to be an overt act of this species of treason, because this was done in defiance of the statute of labourers, it was done in defiance of the King’s authority, 5 Bac. 117. cites 3 inst. 10. — Every assembling of a number of men in a warlike manner, with a design to redress any public grievance, is likewise an overt act of this species of treason, because this, being an attempt to do that by private authority, which only ought to be done by the King’s authority, is an invasion of the prerogative, 5 Bac. 117. cites 3 inst. 9. Ha. p. c. 14. Kel. 71. Sid. 358. 1 Hawk. 37.—Every assembling of a number of men in a warlike manner, with an intention to reform the government, or the law, is an overt act of this species of treason, 5 Bac. 117. cites 3 inst. 9. 10. Poph. 122 Kel. 76. 7. 1 Hawk, 37.—Levying war may be by taking arms, not only to dethrone the King, but under pretence to reform religion, or the laws, or to remove evil counsellors, or other grievances, whether real or pretended, 4 Black. 81. Foster 211.—If any levy war to expel strangers,—to deliver men out of prison,—to remove counsellors,—or against any statute,—or to any other end, pretending reformation of their own heads, without warrant; this is levying war against the King, because they take upon them royal authority which is against the King, 3 inst. 9.—If three, four or more, rise to pull down an inclosure, this is a riot; but if they had risen of purpose to alter religion established within the realm, or laws, or to go from town to town generally, and cast down inclosures, this is a levying of war (though there be no great number of conspirators) within the perview of this statute; because the pretence is public and general, and not private in particular, 3 inst. 9. Foster 211.—If any with strength and weapons, invasive and defensive, do hold and defend a castle or fort against the King and his power, this is levying of war against the King, 3 inst. 10. Foster 219. 1 Hale 146. 296.—It was resolved by all the judges of England in the reign of Henry the 8th, that an insurrection against the statute of labourers, for the inhancing of salaries and wages, was a levying of war against the King, because it was generally against the King’s law, and the offenders took upon them the reformation thereof, which subjects by gathering of power, ought not to do, 3 inst. 10.—All risings in order to effect innovations of a public and general concern, by an armed force, are, in construction of law, high-treason within the clause of levying war.—For though they are not levelled at the person of the King, they are against his royal Majesty. And besides, they have a direct tendency to dissolve all the bonds of society, and to destroy all property, and all government too, by numbers and an armed force, Foster 211. In Benstead’s case, Cro. car. 593. At a conference of all the justices and barons, it was resolved, that going to Lambeth house, in warlike manner, to surprise the Archbishop, who was a privy-counsellor (it being with drums and a multitude) to the number of three hundred persons, was treason; upon which Foster (page 212) observes, that if it did appear by the libel (which he says was previously posted up at the Exchange, exhorting the apprentices to rise and sack the Bishop’s house, upon the Monday following) or by the cry of the rabble, at Lambeth house, that the attempt was made on account of measures the King had taken, or was then taking at the instigation, as they imagined, of the Archbishop, and that the rabble had deliberately, and upon a public invitation, attempted by numbers and open force, to take a severe revenge upon the privy counsellor for the measures the Sovereign had taken or was pursuing; the grounds and reasons of the resolution would be sufficiently explained, without taking that little circumstance of the drum into the case:—And he delivers it as his opinion (page 208) that no great stress can be laid on that distinction taken by Ld. C. J. Hale, between an insurrection with, and one without, the appearance of an army formed under leaders and provided with military weapons, and with drums, colours, &c. and says, the want of these circumstances weighed nothing with the court in the cases of Damaree and Purchase, but that it was supplied by the number of the insurgents: That they were provided with axes, crows and such like tools, suror arma ministrat; and adds (page 208) the true criterion in all these cases, is, quo animo, did the parties assemble, whether on account of some private quarrel, or (page 211) to effect innovations of a public and general concern, by an armed force. Upon the case of Damaree and Purchase (reported 8 stat. in. 218. to 285.) Judge Foster observes (page 215) that ‘since the meeting-houses of protestant dissenters are, by the toleration act, taken under protection of the law, the insurrection in the present case (being to pull down all dissenting protestant meeting-houses) was to be considered as a public declaration of the rabble against that act, and an attempt to render it ineffectual by numbers and open force.’


If there be a conspiracy to levy war, and afterwards war is levied; the conspiracy is, in every one of the conspitators, an overt act of this species of treason, for there can be no accessary in high-treason, 5 Bac. 115. cites 3 inst. 9. 10. 138 Hales P. C. 14. Kel. 19. 1 Hawk. 38.—A compassing or conspiracy to levy war is no treason, for there must be a levying of war in facto. But if many conspire to levy war, and some of them do levy the same according to the conspiracy; this is high-treason in all, for in treason all are principals, and war is levied, 3 inst. 9. Foster 213.


The painful task of applying the above rules of law to the several transactions that we have been eye-witnesses to, will never be mine. Let me however intreat you to make the application in your own minds; and those of you that have continued hitherto “faithful among the faithless”, Abdiel like, to persevere in your integrity: and those of you that have already been ensnared by the accursed wiles of designing men, I would exhort to cast yourselves immediately upon that mercy, so conspicuous through the British constitution, and which is the brightest jewel in the imperial diadem.


MASSACHUSETTENSIS.

February 6, 1775


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