Quincy, April 25, 1809.
A few words more on the subject of pressing. In strictness, we have nothing to do with the question, whether impressments of seamen in England are legal or illegal. Whatever iniquity or inhumanity that government may inflict on their own subjects, we have no authority to call them to an account for it. But when they extend that power to us, a foreign nation, it is natural for us, and it is our duty as well as interest to consider what it is among themselves.
The most remarkable case in which this subject has been touched in Westminster Hall, is in Cowper’s Reports, page 512, Rex vs. John Tubbs. The report of the case is very long, and I shall only observe, that the question of the legality of the power of impressment, was not before the Court. The question was whether the Lord Mayor had a right to exempt thirty or forty watermen for his barges. Lord Mansfield sufficiently expresses his alarm and his apprehension of the consequences of starting a question relative to this subject, in the following words: “I am very sorry that either of the respectable parties before the Court, the city of London on the one hand, or the Lords Commissioners of the Admiralty on the other, have been prevailed upon to agitate this question,” &c.
“I was in hopes the Court would have had an opportunity of investigating this point to the bottom, instead of being urged to dismiss it so instantaneously,” &c. I own I wished for a more deliberate consideration upon this subject; but being prevented of that, I am bound to say what my present sentiments are. The power of pressing is founded upon immemorial usage, allowed for ages.—If it be so founded, and allowed for ages, it can have no ground to stand upon, nor can it be vindicated or justified by any reason but the safety of the state: and the practice is deduced from that trite maxim of the constitutional law of England, that private mischief had better be submitted to, than public detriment and inconvenience should ensue. To be sure there are instances where private men must give way to the public good. In every case of pressing, every man must be very sorry for the act, and for the necessity which gives rise to it. It ought therefore to be exercised with the greatest moderation and only upon the most cogent necesity, and tho’ it be a legal power, it may, like many others, be abused in the exercise of it.”
The case is too long to transcribe; but it is worth reading. My remarks upon it shall be short.
I. Lord Mansfield most manifestly dreaded the question, probably on account of the innumerable difficulties attending it, as well as the national uproar it would most certainly excite.
2. His Lordship carefully avoided the use of the word right. He knew the sense, force and power of words too well to profane that sacred expression, by applying to a practice so loose and undefined, so irregular and capricious, so repugnant to the inherent, hereditary, unalienable and indefensible birth rights of British subjects.
3. He calls it a practice and a power, but he does not even venture to call it a prerogative of the crown.
4. He does not even affirm that there exists such an immemorial usage, allowed for ages. He says, “if it be so founded and allowed for ages.” The existence of such an immemorial usage, allowed for ages, was probably one of the principal points he wished to investigate.
5. He does not affirm that such a custom, usage, power, or practice could be pleaded or given in evidence against Magna Charta. If his Lordship had been allowed time to investigate the subject to the bottom, he perhaps would not have found evidence of any such immemorial usage allowed for ages. He certainly would not have found it allowed by any national act or legal authority, and without one or the other, how can it be said to have been allowed? Allowed by whom? By those who committed the trespass, and no others. His Lordship moreover might have found, that no custom, usage, power or practice could be alledged, pleased or given in evidence, in any court of justice against Magna Charta.
6. All the judges allow that exemptions, badges and protections against impressment have been given by Peers, Commons, Lord Mayors, Lords and Officers of the Admiralty, and as I understand Lord Mansfield, by officers of the navy. Now what a loose, undefined, arbitrary power is this to be legally established as an immemorial usage allowed for ages?
7. I wonder not that his Lordship dreaded the discussion of it and an investigation of it to the bottom, for he must have foreseen the endless difficulties of ascertaining, defining and limiting the usages which were immemorial, and distinguishing them from such as were modern, temporary, usurped and not allowed.
8. The counsel for the city had before observed, that the legality of pressing, if founded at all, could only be supported by immemorial usage, there being clearly no statute in force investing the crown with any such authority.
9. The infinite difficulty of determining who were seamen and who were not, must be obvious, and all agree that the power is confined to seamen and them only.
Christian, in his editions of Blackstone, vol. 1, page 419, says, in a note—“The legality of pressing is so fully established, that it will not now admit of a doubt in any court of justice,” and in proof of this he quotes Lord Mansfield’s opinion in the case of the king against Tubbs, in the words I have above transcribed. Whereas I think that taking all Lord Mansfield says together, he makes the subject as doubtful as ever, and incumbered with innumerable and insuperable difficulties.
Upon the whole, all I conclude form the conduct of the modern judges and lawyers in England is, that the pride in the navy has got the better of their sense of law and justice, and that court and county lawyers, as well as administration and opposition, have been gradually endeavoring to unite for the last thirty or forty years, in sacrificing the principles of justice and law to reasons of state, by countenancing this branch of arbitrary power. But let them keep their arbitrary powers at home: not practise them upon us, our ships, or seamen.
Printed Source--Boston Patriot.