Quincy January 20th. 1816
In the Order of Time, I have passed over a Tragical Event, which excited much interest, and contributed largely, to render the Sovereignty of Parliament odious, detestable and horrible to the People. And I can consionscously add, accellerated the Catastrophy of the fifth of March 1770.
In 1769 a little before the Recall of Governor Bernard, The British Frigate, The Rose Sent a Lieutenant, a Midshipman and a Press Gang of Sailors on board a Ship of Mr Hooper of Marblehead then returning from Bilboa, upon the recruiting Service. The Lieutenant, demanded of the Captain a Sight of his Crew. The Crew were called, “Are here all”? No Answer. “Search the Ship” Said the imperious Leiutenant. A way flew the Midshipman and his Gang of loyal Sailors through every part of the Ship to Search for hidden Seamen. At last the Cry was heard “Here they Are”. Four Sailors, had hid themselves in the forepeak of the Ship the place most likely to be overlooked in a Search. The Forepeak, <
[. . .]> was immediately invaded by the Lieutenant the Midshipman, and the whole Presgang armed with Swords and Pistols. Michael Corbett and Lieutenant Panton argued the Cause: but neither being convinced, resort was had to the Ratio Ultima and an Amiable Youth was laid dead at the Feet of Michael Corbett. A boat was Sent to The Rose, and a Strong Reinforcement to the Presgang, Soon broke down all before them, Seized the four Sailors, one of whom was bleeding, with an Arm broke, by a Pistol Ball, Shot by the Midshipman at random, among the four; in the first assault upon the Forepeak.
A Special Court of Admiralty was Summoned, According to Act of Parliament, to try these four Sailors for Pyracy and Murder on the High Seas in killing Lieutenant Panton; When in Law, Truth and Conscience, the Commander of the Rose Frigate ought to have been prosecuted for Pyracy and Murder on the High Seas in illegally Sending a Press Gang, to enslave Freemen and compelling them in Self defence, to destroy their Invader and intended Destroyer. Or in the better Language of the Boat Swain of the Rose Frigate “to deprive honest Men of their Liberty.”
The Constitution of this Court ought to be Stated by an Historian. It consisted of the Governors of Massachusetts Bernard and New Hampshire Wentworth Judge of Admiralty, Auchmuty Commander of the Navy Commodore Hood, and Counsellers from Several Collonies to the Number of Fifteen. Whether Hutchinson Satt as Lieutenant Governor or as Chief Justice, I know not. When the Court opened the Counsell of the Poor Prisoners, presented Pleas to the Jurisdiction of the Court, and if that Should be overruled requesting and demanding that a Jury Should be Summoned to try the Facts according to the Course of the Common Law.
What has become of the Records of this Court; whether they have been Sent to Hallifax or to London; whether they remain in any Repositary in Boston, or whether they have been burned, like most of the Records of this World, I know not. But if they exist, they will Show four Pleas drawn at great Length, Stating the Laws, Principles and Reasonings on which they were founded and each of them Signed by one of the four Prisoners or by his Counsell. These Pleadings, contemptible as they may appear at this day, cost the Council many days of painful Reserch, and the mere composition and draught of them, Cost more than one Sleepless Night in the hand Writing.
When the Prisoners were Arraigned they presented these four Pleas to the Court and their Counsell appeared to Support them with his Arguments and Books of Authority against Mr Sewall himself and the other Counsell for the Crown.
But the Counsell, on neither Side, were permitted to Say a Word. Hutchinson Started up, and with a countenance, which remains deeply engraven on my Retina to this hour, expressive of the designs and Passions, the Fears and Apprehensions that agitated and tormented his Soul, moved that the Court Should adjourn to the Counsell Chamber. No Opposition! No Reasons Pro or Con. The Countenances of the Innocents and the Simple on the Bench indicating Some Surprize, but the knowing ones manifesting a knowledge or at least a pleasing Conjecture of the Secret. The Prisoners were remanded, Parties, Witnesses, Counsell, Audience, dismissed, and the Court adjourned to the Counsell Chamber, where they remained in Secret Conclave till late in the Evening. When they arose it was given out and propagated through the Town that they had decided in favour of The Pleas, and that Jurors were to be Summoned the next Morning to try the Prisoners.
Whether this Rumour had any foundation in Truth, or whether it was invented and circulated to Soften the keen Asperity of the Public Feeling, I know not. But this is certain, The Court met again early next Morning in Secret Conclave in the Counsell Chamber; and then it was believed by many, conjectured by more and reported generally that Hutchinson and his confidential few, had been allarmed at the decission of the Preceeding Evening, and had contrived a Secret Meeting in the Morning to reconsider the Vote. Whether there was any Truth in these Whispers, Rumors and Murmours I know not. But one Thing is certain that When the Court opened in Form, the four Pleas, without permitting one Word to be said for them or against them by the Counsell on either Side, were pronounced by The President Bernard to be overruled.
The Prisoners were now at the Bar, and the Tryal commenced. The Witnesses on both Sides examined and cross examined. All agreed in every Fact and Circumstance. No contradictory Testimony, British Sailors and American Sailors all agreed. What Morality and what Religion, Dr Morse, in these Sons of Neptune? Oh! for the honour of human Nature, that I could Say the Same of the Court!
When the Examination was ended and taken down by the Clerk and the Counsell in Writing, the Argument of Counsell was expected. The Counsel for the Prisoners had taken great Pains to Search and research, through every Law human and divine, the Doctrine of Homicide in all its divisions, distinctions and Limitations. As this was Said to be a Civil Law Court, he had ransacked every Writer on the Civil Law that the Town of Boston possessed; He had examined every Authority in the Laws of England upon the Subject, and Superadded to all, he had brought forward that Volume of the British Statutes at large, which contained the “Act of Parliament which expressly prohibited, the Impressment of Seamen in America”. All these Books were piled up, on the Table before him, in the Sight of the Court, when the Counsell arose in the ordinary course of Proceedings to argue “The Cause of his Clients the poor Prisoners at the Bar. After addressing to the Court in the usuall Style of respect, he begged their Attention to the Authorities in Law, and to the Testimonies which he Should apply to Shew that the Action of the Prisoners in killing Lieutenant Panton could amount to nothing more than “Justifiable Homicide in necessary Self Defence.
The Words “Justifiable Homicide” were Scarcely out of his Mouth before Hutchinson Started up in very indecorous haste, and moved that the Prisoners be remanded and Court adjourned to the Counsel Chamber. The Prisoners tho crowded Audience, the Barr the Counsell were all thunder Struck, But What were Prisoners Audience Barr or Counsell against “Sic volo, Sic Judeo, Stet pro ratione Voluntas? The Court was adjourned to the Counsell Chamber and there enclosed like a Conclave of Cardinals in Secret Intrigues for the rest of the day.
When the Court opened the next day and the Prisoners ordered to the Bar, All the World expected that the Tryal would commence, and the Argument, on the Law and the Evidence proceed. But, After a Solemn Pause and total Silence, Governor Bernard the President of the Court arose, and with a Countenance So Solemn and So gloomy as made the Audience Shudder, as if a Sentence of Death was coming, addressed himself to the Prisoners by Name, and pronounced, “The Court have considered the Evidence in Support of the Libel against you, and are Unanimously of Opinion that it amounts only to Justifiable Homicide; You are accordingly acquitted and discharged from your Imprisonment.” Not another Word was Said, except by Mr Auchmuty, the Judge of Admiralty who cried out “The Court is unanimous in this Opinion.”
I will leave to Poets and Writers of Romance to describe the Joy that glowed in every heart, and lighted every Countenance at this Denuament of the Tragedy. One Circumstance is too Characteristick to be omitted. The Counsel for the Prisoners, descending from the Chamber where the Court Satt to the lower Floor of the Court house, was met at the bottom of the Stairs by the Boatswain of the Rose “Sir said he We are all greatly obliged to you for, your noble Conduct, in defence of these brave Fellows; Yet, Sir, this is the Employment in which I have been almost constantly engaged for twenty Years; fighting with honest Men to deprive them of their Liberty; I always thought I ought to be hanged for it; and now I know it.”
This Tryal, Dr Morse, is a Mystery never yet explained. A Labyrinth, without a clue! An Enigma that never can be unridled!
Though all Hypotheses must be unavailing in investigating this Phenomenon, So Strange, So unprecedented in the History of Jurisprudence I must be permitted to Suggest a few hints for your Consideration and Inquiry.
1st. Where, can you find a Secret Court of Judicature? In Courts Martial In the Inquisition? or in the Lions Mouth at Venice? The Star Chamber, and the High Commission Court in England even Jeffries’s Courts were open and public.
2. Here were the Governor, the Lieutenant Governor, the Chief Justice the Judge of Admiralty of Massachusetts, the Governor and Counsellors from New-Hampshire, Counsellors from Rhode Island and the Commander in Chief of the Royal Navy, Commodore Hood, now if alive Lord Bridport, Skulking and hiding in total Silence from open Court to Secret Counsell Chamber, like Indians fighting behind Bushes and running in the dark from one Bush to another to avoid Detection.
3. Upon What Law? Upon what Principle? were the Prisoners acquitted of Pyracy and Murder? Nobody knew; Nobody could Conjecture. Every honest Soul was delighted with the Decision; but none knew or could Surmise upon what Grounds it was made.
4. Was the decision, according to The Law of Nature? The Law of Nations? The civil Law? The Common Law? Or the Statute Law?
No Man could answer any of these Questions. All was darkness <
Mysterily> Mystery, Uncertainty and Confusion. The honest Lawyers Said “Misera Servitus est Ubi Jus est Vagum aut incognitum.”
5. There was an Act of Parliament expressly forbiding Impressments in America, then lying on the Table before the Judges produced by the Counsell for the Prisoners, and ready to be read at a Moments Warning which would have justified the decision of the Court to the King the English Nation and the American Public without any other Authority or Argument. Why did not the Court permit this Statute to be read or mentioned? Why did they not produce it and read it themselves, if the Counsell had through Ignorance or forgetfulness omitted it.
6. Can it be credible that this Court, and all the Counsell for the Crown and all the Naval and Custom house Officers were ignorant of this Statute? However incredible it may appear, I have always believed and Still believe that not one of them all had the least knowledge or Suspicion that Such an Act existed. There was at that time but one Copy of the Statutes at Large in the Massachusetts and that Sett had been imported by the Counsell for the Prisoners.
7. Was the Sentence of the Court founded on the Principle of the Universal Illegality of Impressment? I Sincerely believe it was. And moreover, that not one Judge upon that Bench would have dared to give an opinion of its Legality. The oracular and equivocal Dictum of Lord Chatham had not then been pronounced, nor the opinion of the first Pitt as ignorant as it was dogmatical, that it was a Common Law Prerogative of the Crown. Candour obliges me to acknowledge that Mr Sewall conducted this Prosecution like a judicious Lawyer and polite Gentleman: but Hutchinson appeared hurried between his Terror of the Crown and its Officers on one hand and his dread of Unpopularity on the other.
No Tryal had ever interested the Comunity So much before; excited so much Curiosity and Compassion, or So many Apprehensions of the fatal Consequences of the Supremacy of Parliamentary Jurisdiction or the Intrigues of Parlimentary Courts. No Tryal had drawn together Such Crowds of Auditors from day to day. They were as numerous As those in the next Year, at the Tryals of Preston and the Soldiers.
Nevertheless, Every thing relative to this great Event must remain misterious. The whole Transaction seems totally forgotten. None of our Historians appear to have ever head of it. Mrs Warren has not remembered it, and Dr Gordon has taken no Notice of it. Yet Dr Gordon has minutely related the Acction of “Mr Richardson in Shooting Young Sneider and its Effects.” Mr Richardson and his Exploit were thought worthy to be recorded, while Panton and Corbett were to be forgotten! And who was Richardson? If there was even a couler of Justice in the Public Opinion he was the most abandoned Wretch in America; Adultery, Incest Perjury were reputed to be his ordinary Crimes. His Life would exhibit an Atrocious Volume. This Man was Selected by the Board of Commissioners for a Custom house Officer. His Name was Sufficient to raise a Mob. And I had almost Said, to the honour of the Mob— “Mr Richardson” and the innocent Victim Snyder ought to have been remembered, but Panton <
&>< Corbett> ought not to have been forgotten. Preston and his Soldiers ought [have been] forgotten sooner.
NN: Lee Kohns Memorial Collection.