Report of the Committee of the Whole Received

Mr. Wallace' s Motion

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Sir Charles Whitworth, according to order, reported from the Committee of the whole House, the Bill with the amendments, which the Committee had made; several of which were disagreed to, and the rest were, with amendments to several of them, agreed to by the House.

A clause was offered by Mr˙ Wallace, to be added to the Bill, for taking away appeals in the Massachusetts Bay, in cases of murder, during the continuance of the Act.

And a motion being made, that the said clause be brought up;

Mr. Moreton

Mr˙ Moreton desired to know if the appeal for murder did actually exist now in the Colonies?

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Governor Johnstone

Governor Johnstone desired to know if it was to extend to the trial of those sent to England?

Mr. Wallace

Mr˙ Wallace answered them both, by saying, he meant it should extend, in both cases, as far as the Bill purported.

[This brought on a debate concerning the appeal for murder being to be taken away in general.]

Mr. Dunning

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, gentlemen 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 extent it may turn out dangerous, I shall dissent from it.

Mr. Solicitor General Wedderburn

Mr˙ Solicitor General Wedderburn. I confess, Sir, that this part of our constitution 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 purpose; nor do I conceive that the liberty of this country will be at all in danger, as it is only for a temporary expedient.

Mr. Edmund Burke

Mr˙ Edmund Burke. I don' t 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 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

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 question comes on, I shall readily give my opinion on it.

Mr. Stanley

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, says 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 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

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

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.

Mr. Moreton

Mr˙ Moreton. I think the provisions of the Bill right: but I did not apprehend that the question would have been debated in this manner; nor did I think that such an extent would have been in view; so that an example in future might have been brought of this, to attack one of the greatest pillars in this constitution, the appeal for murder. If the prisoner is to be sent here, were is the use of taking the appeal away in America? I only wanted that you should not give a constitution of appeal for murder to the Colonies, when in my own mind I am convinced they have it not, nor is a part of their law; and as I think that they have no such power of appeal, I cannot vote for this clause.

Mr. Phipps

Mr˙ Phipps. I would wish to give, 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

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 deceased should seek for justice. The appeal for murder, Sir, is considered as a civil action, and to go on hand in hand with the criminal prosecution; and surely, Sir, there is nothing then so exceedingly savage or barbarous in it, if it may be compensated by civil action. But let us consider how this will operate in the Colonies; let us consider in what manner this action can be brought; the Americans cannot make use of it unless their constitution allows it: a writ must first issue out of the Court of Chancery; but as they have no 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,

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as it is not necessary. But, Sir, I cannot sit down without 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 honorable gentlemen (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 honorable gentlemen; 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 honor 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 honor will redound to this country from that able performance.

Sir Richard Sutton

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

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 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

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 George Savile. Sir, the appetite of revenue 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 impartial trial to be secured, which I think is already done in the Colonies without meddling with the appeal for murder.

Mr. Skynner

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.

Mr. Wallace

Mr˙ Wallace then, with leave of the House, withdrew the motion.

Mr. R. Fuller

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

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

Mr. Wallace

Mr˙ Wallace said, he had not, as he did not think it

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necessary; that if the prisoner returned, he might there be indicted again.

Mr. Dunning

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

Mr. Wallace

Mr˙ Wallace then offered a clause to limit the continuance of the Act to three years, from the first day of June, next; which was agreed to.

Engrossment of the Bill Ordered, Bill Read

Ordered, That the Bill, with the amendments, be engrossed.

A motion was made, and the question put, that such a number of copies of the Bill, with the amendments, be printed, as shall be sufficient for the use of the members of the House?

It passed in the Negative.

Ordered, That the Bill be read the third time, upon Friday morning next, if the said Bill shall be then engrossed.

Notes

nts

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