15 In too big for my ideas of jurisprudence. munities, I can scarcely conceive anything It should seem to my way of conceiving more completely imprudent than for the such matters, that there is a very wide head of the empire to insist that, if any difference in reason and policy between privilege is pleaded against his will, or the mode of proceeding on the irregular 5 his acts, his whole authority is denied; conduct of scattered individuals, or even instantly to proclaim rebellion, to beat to of bands of men, who disturb order arms, and to put the offending provinces within the state, and the civil dissensions under the ban. Will not this, sir, very which may, from time to time, on great soon teach the provinces to make no disquestions, agitate the several communities tinctions on their part? Will it not teach which compose a great empire. It looks them that the government, against which to me to be narrow and pedantic to apply a claim of liberty is tantamount to high the ordinary ideas of criminal justice to treason, is a government to which subthis great public contest. I do not know mission is equivalent to slavery? It may the method of drawing up an indictment not always be quite convenient to impress against a whole people. I cannot insult dependent communities with such an idea. and ridicule the feelings of millions of We are indeed, in all disputes with the my fellow-creatures, as Sir Edward Coke colonies, by the necessity of things, the insulted one excellent individual (Sir judge. It is true, sir. But I confess Walter Raleigh) at the bar. I hope I am 20 that the character of judge in my own not ripe to pass sentence on the gravest cause is a thing that frightens me. public bodies, entrusted with magistracies stead of filling me with pride, I am of great authority and dignity, and exceedingly humbled by it. I cannot procharged with the safety of their fellow- ceed with a stern, assured, judicial concitizens, upon the very same title that I 25 fidence, until I find myself in something am. I really think that, for wise men, more like a judicial character. I must this is not judicious; for sober men, not have these hesitations as long as I am decent; for minds tinctured with human- compelled to recollect that, in my little ity, not mild and merciful. reading upon such contests as these, the 3o sense of mankind has, at least, as often decided against the superior as the subordinate power. Sir, let me add too, that the opinion of my having some abstract right in my favor would not put me much at my ease in passing sentence, unless I could be sure that there were no rights which, in their exercise under certain circumstances, were not the most odious of all wrongs, and the most vexatious 4° of all injustice. Sir, these considerations have great weight with me, when I find things so circumstanced, that I see the same party at once a civil litigant against me in point of right; and a culprit before 45 me, while I sit as a criminal judge on acts of his, whose moral quality is to be decided upon the merits of that very litigation. Men are every now and then put, by the complexity of human affairs, into strange situations; but justice is the same, let the judge be in what situation he will. 40 Perhaps, sir, I am mistaken in my idea of an empire, as distinguished from a single state or kingdom. But my idea of it is this: that an empire is the aggregate of many states under one common head; whether this head be a monarch, 35 or a presiding republic. It does, in such constitutions, frequently happen (and nothing but the dismal, cold, dead uniformity of servitude can prevent its happening) that the subordinate parts have many local privileges and immunities. Between these privileges and the supreme common authority the line may be extremely nice. Of course, disputes, often, too, very bitter disputes, and much ill blood, will arise. But though every privilege is an exemption (in the case) from the ordinary exercise of the supreme authority, it is no denial of it. The claim of the privilege seems rather, ex vi ter-50 mini [by the meaning of the term], to imply a superior power. For to talk of the privileges of a state, or of a person, who has no superior, is hardly any better than speaking nonsense. Now, in such fortunate quarrels among the component parts of a great political union of com un There is, sir, also a circumstance which convinces me that this mode of criminal 55 proceeding is not (at least in the present stage of our contest) altogether expedient; which is nothing less than the con duct of those very persons who have seemed to adopt that mode, by lately declaring a rebellion in Massachusetts Bay, as they had formerly addressed to have traitors brought hither, under an Act of Henry the Eighth, for trial. For though rebellion is declared, it is not proceeded against as such; nor have any steps been taken towards the apprehension or conviction of any individual offender, either 10 on our late or our former Address; but modes of public coercion have been adopted, and such as have much more resemblance to a sort of qualified hostility toward an independent power than 15 the punishment of rebellious subjects. All this seems rather inconsistent; but it shows how difficult it is to apply these juridical ideas to our present case. In this situation, let us seriously and 20 coolly ponder. What is it we have got by all our menaces, which have been many and ferocious? What advantage have we derived from the penal laws we have rightly passed, and which, for the 25 time, have been severe and numerous? What advances have we made towards our object, by the sending of a force which, by land and sea, is no contemptible strength? Has the disorder abated? 30 Nothing less. When I see things in this situation, after such confident hopes, bold promises, and active exertions, I cannot for my life avoid a suspicion that the plan itself is not correctly right. please any people, you must give them the boon which they ask; not what you may think better for them, but of a kind totally different. Such an act may be a 5 wise regulation, but it is no concession; whereas our present theme is the mode of giving satisfaction. Sir, I think you must perceive that I am resolved this day to have nothing at all to do with the question of the right of taxation. Some gentlemen startle but it is true; I put it totally out of the question. It is less than nothing in my consideration. I do not indeed wonder, nor will you, sir, that gentlemen of profound learning are fond of displaying it on this profound subject. But my consideration is narrow, confined, and wholly limited to the policy of the question. I do not examine whether the giving away a man's money be a power excepted and reserved out of the general trust of government; and how far all mankind, in all forms of polity, are entitled to an exercise of that right by the charter of Nature. Or whether, on the contrary, a right of taxation is necessarily involved in the general principle of legislation, and inseparable from the ordinary supreme power. These are deep questions, where great names militate against each other; where reason is perplexed; and an appeal to authorities only thickens the confusion. For high and reverend authorities lift up 35 their heads on both sides; and there is no sure footing in the middle. This point 'is the great Serbonian bog. Betwixt Damiata and Mount Casius old, Where armies whole have sunk.' I do not intend to be overwhelmed in that bog, though in such respectable company. The question with me is, not whether you have a right to render your people miserable, but whether it is not your interest to make them happy. It is not what a lawyer tells me I may do, but what humanity, reason, and justice tell me I ought to do. Is a politic act the worse for being a generous one? Is no concession proper, but that which is made from your want of right to keep what you grant? Or does it lessen the grace or dignity of relaxing in the exercise of an odious claim, because you have your evidence-room full of titles, and your magazines stuffed with arms to enforce them? What signify all those titles and all those arms? Of what avail 40 If then the removal of the causes of this spirit of American liberty be, for the greater part, or rather entirely, impracticable; if the ideas of criminal process be inapplicable, or if applicable, are in the highest degree inexpedient; what way yet remains? No way is open but the third and last to comply with the American spirit as necessary; or, if you please, to submit to it as a necessary evil. 45 If we adopt this mode; if we mean to conciliate and concede; let us see of what nature the concession ought to be: to ascertain the nature of our concession we must look at their complaint. The col- 50 onies complain that they have not the characteristic mark and seal of British freedom. They complain that they are taxed in a parliament in which they are not represented. If you mean to satisfy 55 them at all, you must satisfy them with regard to this complaint. If you mean to are they, when the reason of the thing tells me that the assertion of my title is the loss of my suit; and that I could do nothing but wound myself by the use of my own weapons? Such is steadfastly my opinion of the absolute necessity of keeping up the concord of this empire by a unity of spirit, though in a diversity of operations, that, gence. Some years ago, the repeal of a Revenue Act, upon its understood principle, might have served to show that we intended an unconditional abatement of the exercise of a taxing power. Such a measure was then sufficient to remove all suspicion, and to give perfect content. But unfortunate events, since that time, may make something further necessary; and not more necessary for the satisfaction of the colonies, than for the dignity and consistency of our own future proceedings. if I were sure the colonists had, at their 10 solemn declaration of systematic indulleaving this country, sealed a regular compact of servitude; that they had solemnly abjured all the rights of citizens; that they had made a vow to renounce all ideas of liberty for them and 15 their posterity to all generations; yet I should hold myself obliged to conform to the temper I found universally prevalent in my own day, and to govern two million of men, impatient of servitude, on the 20 principles of freedom. I am not determining a point of law; I am restoring tranquillity; and the general character and situation of a people must determine what sort of government is fitted for them. 25 That point nothing else can or ought to determine. 1. Loyalty but Law (1775) EDWARD GIBBON (1737-1794) The greatest of English historians was born not far from London, at Putney in Surrey, where his father lived the easy life of a country gentleman. Gibbon ascribed the success of his later years to the golden mediocrity' of his fortunes, which preserved him on the one hand from the seductions of pleasure and, on the other, from the need of earning a living. His childhood was sickly, his education was intermittent, and he was indulged in his bent for reading which soon settled to a passion for history. At an early age he had devoured everything in that department which was accessible in English and had begun to annex other languages in order that he might gratify his hunger for original documents. He was sent at fifteen to Magdalen College, Oxford, and has left a withering indictment of the neglect and incompetence which he encountered at that seat of learning. Left to himself, he fell under the influence of a Jesuit and was converted to Roman Catholicism; whereupon his father promptly deported him to Switzerland and placed him under the care of a Calvinist minister at Lausanne. Through constant practice in the defense of his faith he became familiar with its assailable points, and soon passed to the position of scepticism which he permanently occupied. He mastered the French language and the French method of study and became deeply imbued with the French rationalistic ideas of the period. By five years of great diligence under able direction he laid the foundation of his superb equipment for the task of his life. Returning to England, he published in the French language his first book, Essai sur l'Etude de la Litterature [Essay on the Study of Literature] (1761). To please his father he served for two years and a half as a captain of militia. The singleness of his ambition is well illustrated by his summary of these lost years: The discipline and evolutions of a modern battalion gave me a clearer notion of the phalanx and the legions, and the captain of the Hampshire grenadiers — the reader may smile has not been useless to the historian of the Roman empire.' But of this and of his later career in Parliament he was impatient as of anything which did not contribute directly to his one ambition. From his early youth he had aspired to the character of a historian,' but he remained unsettled as to the field he should occupy until he found himself at Rome. In my journal, the place and the moment of the conception are recorded,' he tells us in his Memoirs, the fifteenth of October, 1764, in the close of the evening, as I sat musing in the church of the Zoccolanti or Franciscan friars, while they were singing vespers in the temple of Jupiter on the ruins of the Capitol.' Two years elapsed before he was able to set to work, twelve before the first volume was published in London, and another twelve before he laid down his pen at Lausanne. His History of the Decline and Fall had been his life, the one object toward which all his reading and experience were made to converge, and is the one subject of his Memoirs. He quietly finished his days at Lausanne, undoubtedly justified in his feeling that this achievement had been enough for one life. The substance of Gibbon's candid and rational inquiry into the human causes' of the religious growth which undermined the civilization of the ancient world, has not remained totally unassailed by the modern historian; nor is Gibbon's style perfect; but it is safe to say that no other Englishman has united in an equal degree abundance and accuracy of information, sense of historical perspective and proportion, vigor of narrative, and splendor of style. FROM THE DECLINE AND FALL OF THE ROMAN EMPIRE a deep ditch of the depth of one hundred feet. Against this line of fortification, which Phranza, an eye-witness, prolongs to the measure of six miles, the Ottomans 5 directed their principal attack; and the emperor, after distributing the service and command of the most perilous stations, undertook the defence of the external wall. In the first days of the siege, Of the triangle which composes the figure of Constantinople, the two sides along the sea were made inaccessible to an enemy: the Propontis by nature and the harbor by art. Between the two waters, the basis of the triangle, the land side was protected by a double wall and 10 the Greek soldiers descended into the workmen were destroyed; and the skill of an artist was admired, who bethought himself of preventing the danger and the accident, by pouring oil, after each explo5 sion, into the mouth of the cannon. ditch, or sallied into the field; but they soon discovered that, in the proportion of their numbers, one christian was of more value than twenty Turks; and, after these bold preludes, they were prudently content to maintain the rampart with their missile weapons. Nor should this prudence be accused of pusillanimity. The nation was indeed pusillanimous and base; but the last Constantine deserves 10 the name of an hero: his noble band of volunteers was inspired with Roman virtue; and the foreign auxiliaries supported the honor of the Western chivalry. The incessant volleys of lances and arrows 15 were accompanied with the smoke, the sound, and the fire of their musketry and cannon. Their small arms discharged at the same time either five or even ten balls of lead of the size of a walnut; and, 20 according to the closeness of the ranks and the force of the powder, several breastplates and bodies were transpierced by the same shot. But the Turkish approaches were soon sunk in trenches or 25 covered with ruins. Each day added to the science of the christians; but their inadequate stock of gunpowder wasted in the operations of each day Their ordnance was not powerful either 30 in size or number; and, if they possessed some heavy cannon, they feared to plant them on the walls, lest the aged structure should be shaken and overthrown by the explosion. The same destructive secret 35 had been revealed to the Moslems; by whom it was employed with the superior energy of zeal, riches, and despotism. The great cannon of Mahomet has been separately noticed; an important and 40 The cannon were intermingled with the was visible object in the history of the times: 50 55 The first random shots were productive of more sound than effect; and it was by the advice of a christian that the engineers were taught to level their aim against the two opposite sides of the salient angles of a bastion. However imperfect, the weight and repetition of the fire made some impression on the walls; and the Turks, pushing their approaches to the edge of the ditch, attempted to fill the enormous chasm and to build a road to the assault. Innumerable fascines and hogsheads and trunks of trees were heaped on each other; and such was the impetuosity of the throng that the foremost and the weakest were pushed headlong down the precipice and instantly buried under the accumulated mass. To fill the ditch was the toil of the besiegers; to clear away the rubbish was the safety of the besieged; and, after a long and bloody conflict, the web that had been woven in the day was still unraveled in the night. The next resource of Mahomet was the practice of mines; but the soil was rocky; in every attempt he was stopped and undermined by the christian engineers; nor had the art been yet invented of replenishing those subterraneous passages with gunpowder and blowing whole towers and cities into the air. A circumstance that distinguishes the siege of Constantinople is the reunion of the ancient and modern artillery. mechanical engines for casting stones and darts; the bullet and the battering-ram were directed against the same walls; nor had the discovery of gunpowder superseded the use of the liquid and unextinguishable fire. A wooden turret of the largest size was advanced on rollers: this portable magazine of ammunition and fascines was protected by a threefold covering of bulls' hides; incessant volleys were securely discharged from the loop-holes: in the front, three doors were contrived for the alternate sally and retreat of the soldiers and workmen. They ascended by a staircase to the upper platform, and, as high as the level of that platform, a scaling-ladder could be raised by pulleys |