Prov. &c.2 Before the Honorable Robert Auchmuty Esqr.

Be it remembered, that on the 29 day of October in the Ninth Year of the Reign of his Majesty George the Third, Jonathan Sewall Esqr. Advocate General for the said Lord the King, in his proper Person comes and as well on behalf of the said Lord the King, as of the Governor of this Province,3 gives the said Court to understand and be informed, that on the ninth day of May last, a certain Sloop called the Liberty, arrived at the Port of Boston in said Province, from the Islands of Madeira, having on Board, one hundred and twenty seven Pipes of Wine of the Growth of the Madeira's; of which said Sloop, one Nathaniel Barnard was then Master, and that in the Night Time of the same day the said Nathaniel Barnard with Intent to defraud the said Lord the King of his lawfull Customs, did unlawfully and clandestinely unship and land on shore in Boston aforesaid one hundred of the aforesaid Pipes of Wine4 of the Value of Thirty Pounds Sterling Money of Great Britain, each Pipe, the Duties thereon not having been first paid, or secured to be paid, agreable to Law. And that John Hancock of Boston aforesaid Esqr. was then and there willfully and unlawfully aiding and assisting in unshipping and landing the same one hundred Pipes of Wine, he the said John Hancock, at the same Time well knowing, that the Duties thereon were not paid or secured and that the unshipping and landing the same, as aforesaid, was with Intent to defraud the said Lord the King as aforesaid, and contrary to 195Law; against the Peace of the said Lord the King and the Form of the Statute in such Case made and provided, whereby and by Force of the same Statute, the said John has forfeited Treble the value of the said Goods, so unshipped and landed as aforesaid, amounting in the whole to the Sum of Nine Thousand Pounds Sterling Money of Great Britain, to be divided, paid and applied in manner following, that is to say, after deducting the Charges of Prosecution, one Third Part thereof to be paid into the Hands of the Collector of his Majesty's Customs for the said Port of Boston, for the Use of his Majesty, his Heirs and Successors, one Third Part to the Governor of said Province, and the other Third Part to him that informs for the same.

Whereupon as this is a matter properly within the Jurisdiction of this Honorable Court, the said Advocate General prays the Advisement of the said Court in the Premisses, and that the said John Hancock may be attached and held to answer to this Information, and may by a Decree of this honourable Court be adjudged to pay the aforesaid Sum of Nine Thousand Pounds to be applied to the uses aforesaid.

Octr. 29, 1768. Filed and allowed and ordered that the Register of this Court or his Deputy issue out a Warrant for the Marshall of this Court or his Deputy to arrest the Body of the said John Hancock and him keep in safe Custody so that he have him at a Court of Vice Admiralty to be holden at Boston on the Seventh day of November next at Nine of Clock before noon and that he take Bail for Three Thousand Pounds Sterling money of G. Britain.

Upon what Statute is this Libel founded? Is it on 4 G. 3, C. 15, §37.5 Be it enacted, &c. “if any Goods or Merchandizes whatsoever, liable to the Payment of Duties in any British Colony or Plantation in America, by this or any other Act of Parliament shall be loaden on Board any Ship or Vessel outward bound, or shall be unshipped or landed from any ship or Vessell inward bound, before the respective Duties due thereon are paid, agreable to Law; or if any prohibited Goods whatsoever shall be imported into, or exported out of, any of the said Colonies or Plantations contrary to the true Intent and meaning of this or any other Act of Parliament; every Person who shall be assisting, or otherwise concerned, Either in the Loading outwards, or in the Unshipping or landing Inwards, such Goods, or to whose Hands the same shall knowingly come after the Loading or unshipping there-196of, shall for each and every offence forfeit treble the Value of such Goods, to be estimated and computed according to the best Price that each respective Commodity bears at the Place where such offence was committed; and all the Boats, Horses, Cattle, and other Carriages whatsoever, made Use of, in the Loading, Landing, removing, Carriage or Conveyance of any of the aforesaid Goods, shall also be forfeited and lost, and shall and may be seized and prosecuted, by any officer of his Majestys Customs, as hereinafter mentioned.”6

There is a Clause similar, in most respects to this in 8. Ann, C. 7, §17.7 “And for preventing the Frauds, which may be practised in unshipping to be landed any Pepper, Raisins, Mace, Cinnamon, Cloves, Nutmegs, Snuff, or any other Sort of Goods whatsoever, subject to the Payment of Duties without paying the same as also to hinder the Importation of any Sort of prohibited Goods into Great Britain, Be it further enacted by the Authority aforesaid, that if any Pepper, Raisins, Mace, Cinnamon, Cloves, Nutmegs, Snuff, or any other Sort of Goods whatsoever, liable to the Payment of Duties, shall be unshipped, with Intention to be laid on Land (customs and other Duties, not being first paid or secured) or if any prohibited Goods whatsoever, shall be imported into any Part of Great Britain, then not only the said uncustomed and prohibited Goods, shall be forfeited and lost, but also the Persons who shall be assisting, or otherwise concerned in the unshipping the said prohibited and uncustomed Goods, or to whose Hands the same shall knowingly come, after the unshipping thereof, shall forfeit Treble the value thereof, together with the Vessells and Boats, and all the Horses, and other Cattle and Carriages whatsoever, made use of in the Landing, removing, Carriage, or Conveyance of any of the aforesaid Goods,” &c.8

Madeira Wines are Goods and Merchandises, liable to the Payment of Duties in this British Colony or Plantation.9 Admitting it 197proved that a Quantity of such Wines were unshipped and landed, from the sloop Liberty inward bound, before the Duties due upon it, were paid, agreable to Law. What shall be the Construction of the Words “assisting or otherwise concerned,” in the Unshipping or Landing inwards. The Labourers, the Porters, and Sailors, who manage the Tacles and with their own Hands, hoist out the Pipes, are no doubt, concerned, and the Master who oversees and gives orders, is no doubt assisting. But is the owner Either concerned or assisting in it, if he does not know of it. He may be asleep in his Bed, and not so much as know or dream that any Body is unshipping and landing his Wines. Is he then concerned or assisting? Can it be proved that Captain Barnard was concerned? Can it be proved that Captn. Marshall was? What then? Can it be proved that Captn. Marshall asked Leave of Mr. Hancock? Can it be proved that Mr. Hancock knew of this Frolick? If he neither consented to it, nor knew of it, how can he be lyable to the Penalty?10

I must beg the Indulgence of the Court, while I consider the Character of this Act of Parliament. There is a great Variety in the Characters of Laws as well as Men. A benign and beneficial Law is to receive a liberal and benign Construction. A rigorous and severe Law is to receive a strict and severe Construction. And the more penal it is the more severe must the Construction of it be, and the more tenderly must it be carried into Execution. It will not be impertinent therefore to shew in some Detail the Circumstances, that render this Law the most rigid and severe, or in other Words the most poenal of almost any Law in the whole British Pandect.

The Degree of severity in any Poenal Law is to be determined only 198by the Proportion between the Crime and the Punishment. Treason is justly punished with death because it is an attempt to overthrow the whole Frame of the Government, and the Government can never be overturned without the slaughter of many Hundreds of Lives and the Ruin of many Thousands of Fortunes. If a Man will murder his Fellow subject it seems but equall that he should loose his own Life. But in this Case what is the Crime? Landing a few Casks of Wine. Admitting the Crown to have the clearest Right to the Duties it is but unjustly taking away a small sum of Money from the Crown, and one would think that the forfeiture of £100 would be an equal Punishment for withholding £100 in Duties.11 But surely the Forfeiture of an whole Cargo of Wines worth Ten Thousand Pounds, for withholding one hundred Pounds in Duties would be a great Disproportion between the Crime and Punishment. To carry it one step further, and subject the ship, as well as Cargo to Confiscation, but above all to subject the Master to £1000,12 and every Person concerned to a forfeiture of threble value, is such a stretch of security as renders this Act more Penal, than any Statute vs. Rape, Robbery, Murder or Treason.

But among the Groupe of Hardships which attend this Statute, the first that ought always to be mentioned, and that ought never to be forgotten is

1. That it was made without our Consent. My Clyent Mr. Hancock never consented to it. He never voted for it himself, and he never voted for any Man to make such a Law for him. In this Respect therefore the greatest Consolation of an Englishman, suffering under any Law, is torn from him, I mean the Reflection, that it is a Law of his own Making, a Law that he sees the Necessity of for the Public. Indeed the Consent of the subject to all Laws, is so clearly necessary that no Man has yet been found hardy enough to deny it. And The Patrons of these Acts allow that Consent is necessary, they only contend for a Consent by Construction, by Interpretation, a virtual Consent.13 But this is 199only deluding Men with Shadows instead of Substances. Construction has made Treasons where the Law has made none. Constructions, in short and arbitrary Distinctions, made in short only for so many by Words,14 so many Cries to deceive a Mob have always been the Instruments of arbitrary Power, the means of lulling and ensnaring Men into their own Servitude. For whenever we leave Principles and clear positive Laws, and wander after Constructions, one Construction or Consequence is piled up upon another untill we get at an immense distance from Fact and Truth and Nature, lost in the wild Regions of Imagination and Possibility, where arbitrary Power sitts upon her brazen Throne and governs with an iron Scepter. It is an Hardship therefore, scarcely to be endured that such a poenal Statute should be made to govern a Man and his Property, without his actual Consent and only upon such a wild Chimaera as a virtual and constructive Consent.

But there are greater Proofs of the Severity of this statute, yet behind.

2. The Legislative Authority by which it was made is not only grievous, but the Executive Courts15 by which it is to be carried into Effect is another. In the 41st section of this Act 4 G. 3, c. 15.16 we find that “All the Forfeitures and Penalties inflicted by this or any other Act or Acts of Parliament, relating to the Trade and Revenues of the said British Colonies or Plantations in America, which shall be incurred there, shall and may be prosecuted, sued for, and recovered, in any Court of Record,17 or in any Court of Admiralty, in the said Colonies or Plantations where such offence shall be committed, or in any Court of Vice Admiralty, which may or shall be appointed over all America, (which Court of Admiralty or Vice Admiralty, are hereby respectively authorized and required to proceed, hear, and determine 200the same), at the Election of the Informer or Prosecutor.” Thus, these extraordinary Penalties and Forfeitures, are to be heard and try'd,—how? Not by a Jury, not by the Law of the Land, but by the civil Law and a Single Judge. Unlike the ancient Barons who unâ Voce responderunt, Nolumus Leges Angliae mutari,18 The Barons of modern Times have answered that they are willing, that the Laws of England should be changed, at least with Regard to all America, in the most tender Point, the most fundamental Principle. And this Hardship is the more severe as we see in the same Page of the Statute and the very preceeding section §40, “That all Penalties and Forfeitures, herein before mentioned, which shall be incurred in Great Britain, shall and may be prosecuted, sued for and recovered in any of his Majestys Courts of Record in Westminster or in the Court of Exchequer in Scotland respectively.”19

Here is the Contrast that stares us in the Face! The Parliament in one Clause guarding the People of the Realm, and securing to them the Benefit of a Tryal by the Law of the Land, and by the next Clause, depriving all Americans of that Priviledge. What shall we say to this Distinction? Is there not in this Clause, a Brand of Infamy, of Degradation, and Disgrace, fixed upon every American? Is he not degraded below the Rank of an Englishman? Is it not directly, a Repeal of Magna Charta, as far as America is concerned. It is not att all surprising that the Tryals of Forfeiture and Penalties are confined to the Courts of Record at Westminster, in England. The Wonder only is that they are not confined to Courts of common Law here.

The People of England are attached to Magna Charta.20 By the 29th Chapter of that Statute, “Nullus liber Homo capiatur, vel imprisonetur, aut disseisietur de libero tenemento suo, vel libertatibus, vel liberis Consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus nec super eum mittemus, nisi per 201legale Indicium Parium Suorum vel per Legem Terrae.”21 This 29, Chap, of Magna Charta, has for many Centuries been esteemed by Englishmen, as one of the noblest Monuments, one of the firmest Bulwarks of their Liberties—and We know very well the Feelings and Reflections of Englishmen whenever this Chapter has been infringed upon even in Parliament. One Proof of them has been given us by Lord Coke, in his Exposition of this Chapter.22 2. Inst. 51. “Against this ancient and fundamental Law, and in the Face thereof I find an Act of Parliament made, that as well Justices of Assize as Justices of Peace without any finding or presentment of 12 Men, upon a bare Information for the King before them made, should have full Power and Authority by their Discretions,” &c.23

Lord Coke after mentioning the Repeal of this Statute and the Fate of Empson and Dudley, concludes with a Reflection, which if properly attended to might be sufficient even to make a Parliament tremble.24 “The ill success of this Statute and the fearfull End of these 2 oppressors, should deter others from committing the like, and should admonish Parliaments, that instead of this ordinary and precious Tryal Per Legem Terrae, they bring not in absolute and partial Tryals by Discretion.”25

These are the Reflections of an Englishman, upon a Statute which gave to Justices of Assize, and Peace, the Tryal of Penalties and Forfeitures, which by the 29. Chapter of Magna Charta ought to be tryed by Jury. The Statute 4 G. 3. takes from Mr. Hancock this precious Tryal Per Legem Terrae, and gives it to a single Judge.26 However respectable the Judge may be, it is however an Hardship and severity, which distinguishes my Clyent from the rest of Englishmen, and renders this Statute, extremely poenal.27

I have mentioned this Particular, not merely to shew the Hardship 203of this Statute and Prosecution, and that my Client is therefore in a favourable Case,28 but for another Purpose, vizt. to shew the Nature of the Evidence, that is required in this Case. We are here to be tryed by a Court of civil not of common Law, we are therefore to be tryed by the Rules of Evidence that we find in the civil Law, not by those that We find in the common Law. We are to be tryed, both Fact and Law is to be tryed by a single Judge, not by a Jury. We therefore claim it as a Right, that Witnesses not Presumptions nor Circumstances are to be the Evidence.

We are to enquire what is the Evidence required by the civil Law, in Criminal Cases in order to convict a Person of a Crime and to Subject him to a Penalty. New Inst. civil Law. Page 316.29 2. “The Number of Witnesses ought to be two at the least to make a full Proof, and these must be free from all Exceptions, Either as to their Persons or their Depositions. For the Testimony of a single Witness is of no Validity, tho the Person is of a great Character,” &c.30 “For one Witness may mistake or lie, and be corrupted, and yet be consistent with himself, and so remain undiscovered; whereas two or three Witnesses may more easily be found in a Conspiracy by a prudent Judge if they are separately examined; and tho many Criminals would escape and many might loose their Right for Want of two Witnesses, yet it would be a lesser Evil than to trust so much Power to the Mistakes or Malice of one Person.”

Dig. Lib. 22. Tit. 5. §12. De numero Testium. “Ubi numerus testium non adjicitur, etiam duo sufficient. Pluralis enim elocutio duorum numero contenta est.”31

Codicis Lib. 4. Tit. 20. §9, §1. “Simili modo sanximus, ut unius testimonium nemo Iudicum, in quacunque causa facile patiatur ad-204mitti. Et nunc manifeste sanximus, ut unius omnino testis responsio non audiatur, etiamsi praeclarae Curiae honore prefulgeat.”32 Vide Note 32. “Unus testis, nullus testis. Unius Testimonium non admittitur. Vox Unius, Vox nullius est.”33 In this Respect the civil Law conforms to the divine Law. Deut. 19. 15. “One Witness shall not rise up against a Man for any Iniquity, or for any Sin, in any sin that he sinneth: at the Mouth of two Witnesses, or 3, shall the matter be established.”34

But in Hancock's Case, if there were 2 or ten such Witnesses as Mezle,35 they would not amount to Proof sufficient for Condemnation. Because there are against him, the strongest legal Exceptions, 1. His Condition. New Inst. civ. Law. 315. “Indigent Persons and Beggars ought to be suspected, because they are easily corrupted.”36 Dig. 22. 5. 3. “Testium Fides diligenter examinanda est: Ideoque in Persona eorum exploranda, erunt in primis, Conditio, cujusque; utrum quis decurio an Plebeius sit; et an honestae et inculpatae vitae, an vero notatus quis, et reprehensibilis. An locuples vel egens sit ut lucri causa quid facile admittat: vel an inimicus ei sit, adversus quem testimonium fert; vel amicus ei sit, pro quo testimonium dat:” &c.37 Vide Note 22. “In Testibus hac sunt inquiranda, Conditio, Vita, Facultates, Inimicitiae, vel amicitiae, suspicio denique &c.”38

Calv. Lex. Testes.“Callistratus, testium Fidem, Conditionem, Vitam anteactum, Fortunam, Aestimationem, atque dignitatem diligenter exquirendam esse praecipit.”39

Fortescue De Laudibus Legum. C. 31. page 38. “It will not always happen that they i.e. perjured witnesses are or can be known by the Party, Defendant in the Cause, in order to call in Question their Life and Conversation, that as Persons of a profligate Character, they might be cross examined; upon which account their Evidence might be set aside.”40

The general Character of this Witness cant be known. We can have no Citation to the Mountains of Switzerland, or the Fens of Holland or the Plains of Cape Francois,41 for Witnesses to his general Character for Truth. We ought to know therefore all that can be known of his History from his own Mouth. Life and Conversation, Fides, Vitam anteactam, inculpatae et honestae Vitae are Expressions, that denote more than a general Character for Truth or falshood.

The civil Law seems to lean to the side of Mercy, as much as the common Law. Wood Inst. 310. “In Criminal Cases the Proofs ought to be as clear as the Sun at Noon day:”42

Domat. V. 1. Page 13. Preliminary Book. Tit. 1. Sect. 2. N. 15.43 “The Laws which restrain our natural Liberty, such as those that forbid any Thing that is not in itself unlawfull or which derogate in any other manner from the general Law, the Laws which inflict Punishments for Crimes and offences, or Penalties in civil matters; those which prescribe certain Formalities; the Laws which appear to have any Hardship in them” &c.44 “are to be interpreted in such a manner, as not to be applied beyond what is clearly expressed in the Law,” &c.45 “We ought to give to such Laws all the Temperament of Equity and Humanity, that they are capable of.” Notae: “Interpretatione Legum Poenae molliendae sunt, potius quam asperendae. In Poenalibus Causis benignius interpretandum est. In levioribus Causis proniores at Lenitatem Judices esse debent, in gravioribus Poenis, Severitatem Legum, cum aliquo temperamento benignitatio subsequi.”46

Codicis. Lib. 4. Tit. 19. §.25. De Judiciis criminalibus. “Sciant cuncti accusatores eam se rem deferre in publicam notionem debere quae munita sit idoneis Testibus, vel instructa apertissimis documentis vel indiciis ad probationem indubitatis et luce clarioribus expedita.”47 Vide Notes also.48

But disregarding order, for the present let me record the Controversy We had last Week, Concerning the Rules of Law which were to govern this Case.49 The Court of Admiralty is originally a Civil Law Court. Jurisdiction of a Crime, is given to it in this Case by Act of Parliament. The Question is whether it is to proceed by the civil Law? If it is, We have a Right to examine the Witnesses whole past Life, and his Character at large. A Son cannot be examined against the Father nor the Father against the Son, and other Relations are disqualified to be Witnesses. All Persons under Twenty are disqualified, under 20 years of age I mean, from being Witnesses. Servants and dependants 207are not to be Witnesses. Nay. Mr. Fitch says we must adopt the Method of Torture, among the rest.

On the Contrary I argue, that if We are to be governed by the Rules of the common Law We ought to adopt it as a whole and summon a Jury and be tryed by Magna Charta. Every Examination of Witnesses ought to be in open Court, in Presence of the Parties, Face to Face. And there ought to be regular Adjournments from one Time to another.

What other Hypothesis shall we assume? Shall We say that We are to be governed by some Rules of the common Law and some Rules of the civil Law, that the Judge at his Discretion shall choose out of each system such Rules as please him, and discard the rest. If so Misera Servitus est. Examinations of witnesses upon Interrogatories, are only by the Civil Law. Interrogatories are unknown at common Law, and Englishmen and common Lawyers have an aversion to them if not an Abhorrence of them. Shall We suffer under the odious Rules of the civil Law, and receive no advantage from the beneficial Rules of it? This, instead of favouring the Accused, would be favouring the Accuser, which is against the Maxims of both Laws.

Obsirve, The Expressions. The Substance of a Point. A Point has not Parts, therefore is indivisible, therefore to talk of the substance of it, is not the neatest or most elegant. But to omit Criticism, let me make a few Observations upon the Reasoning substance of the Decree.

1. The Advocates for the Crown, did not argue that our Argument would exclude Relations, Friends, Persons under 14. &c. But the Advocates for the Respondent, insisted that all those Rules of the civil Law ought to be adopted, because they were beneficial to the subject the Respondent. We had no difficulty at all in Admitting the Consequence as far as it is here mentioned. So far from it that we desired it, because Mr. Hancock's Relations, Friends, and many Persons under age have been examined in this Case. It is true Mr. Fitch did argue that our Principle would justify the Introduction of Torture and this he thought was proving too much, and this was well observed by Mr. Fitch and was the best argument I have heard in the Case.56

2. The Judge has totally mistaken the “Sense” of the Authority, for instead of being a Description of Objections against Persons being admitted to their Oaths it is wholly confined to those who are already sworn. It is Testium Fides examinanda est,57 not Personarum Fides, and as a Witness in English implies the Competency of the Person, so 210Testis in Latin implies the same, and a Person cannot be Testis, untill he is admitted, to tell what he knows, i.e. to give Evidence.58