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From John Adams to William Cunningham, 4 March 1809

Quincy March 4th. 1809

Dear Sir

I have yours of Feb. 20 and 23. The inclosed five sheets are the rough draught, which I have requested and you have promised to return. I shall burn it because I have made another Copy more correct in which I have left out the Name and much of the trumpery.

In strictness, we have nothing to do with the question whether impressments of seamen are legal or illegal in England. Whatever Iniquity or inhumanity that Government may inflict on thier 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 to consider, what it is among themselves.

The most remarkable Case in which this subject has been touched in Westminster hall is in Cowpers 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 impress[ment] 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 discuss 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 excercised with the greatest moderation and only upon the most cogent Necessity And though it be a legal power it may like many others be abused in the excercise of it.

The case is too long to transcribe but it is worth reading my remarks upon it shall be short.

1. Lord Mansfield most manifestly dreaded the question. 2 His Lordship carefully avoids the use of the word Right. 3 He calls it a power and a Practice but he does not venture to call it a Perogative. 4 he does not even affirm that such a custom usage power or practice could be pleaded or given in evidence in any Court of Justice against Magna Charta. 5 nor he does not say how any custom usage Power or Practice has existed from time immemorial and been allowed for ages: 6—All the Judges allow that Exemptions, Badges and Protections have been given by Peers, Commoners, 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 an investigation of it to the bottom for he must have seen the endless difficulty of ascertaining defining and limiting the usages which were immemorial and distinguishing them from such as were modern and temporary. 8 The council 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.

Christian in his Edition 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 Mansfields opinion in the case of the thing [King] vs Tubbs in the words I have above transcribed.

Upon the whole all that I can conclude from the conduct of the modern Judges and Lawyers in England is that administration and opposition Court and Country Lawyers have been gradually endeavouring to unite for the last thirty years in Sacrificing the principles of Justice and Law to reasons of State by countenancing this branch of arbitrary power. But let them keep thier arbitrary powers at home: Not practice them upon us our seamen or ships.

The British Practice of searching our ships of War as well as Merchantmen for seamen was one great Point on which my petulent Prophet was pleased to differ in opinion from me. When I wanted him to instruct Mr King to urge the most nervous remonstrances against these outrages, I could get nothing but muttering that the English had a right to thier own seamen &&&. When Marshall came in I got all I wanted cheerfully faithfully and ably done. Return the inclosed as soon as you can to your humble servant

John Adams

MHi: Adams Family Papers, Letterbooks.

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