Pickering, John to John Langdon re: Habeas Corpus, constitutional issues
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"The Confederation dearly points out the right of deciding all controversies concerning the boundaries of any state... the present case shows the necessity and utility of such powers being vested in the United States and not in any one separate state lest the whole should be involved in a war by the Rashness, imprudence or prejudice of one or more states... Parliamentary Habeas Corpus backed by the military arm... I ask who is to observe the writ? the Militia? Would it not have been more eligible and regular for the Supreme Judicial Court to have issued and directed a Habeas Corpus."
Portsmouth 24, December 1781
The measures, I understand the G[enera]l C[ounci]l have taken and are taking concerning the unhappy dispute with our mad, disaffected brethren in the upper counties in this State, appear to some justly alarming. Measures, which respect an object of such magnitude, which may be attended with the most serious consequences, as lasting as time, cannot be too much revolved & weighed before adopted or pursued. I conceive it is both our duty and policy not to take one step in [inserted: this] important business before Congress be made acquainted with the matter & consulted upon it.- This method the Confederation clearly points out- The right of deciding all controversies concerning the boundaries of any States- is vested in the Congress of the United States; also the exclusive Right of Peace and War in all cases. I think the present case shows the necessity and utility of such powers being vested in the United States and not in any one separate State, lest the whole should be involved in a War by the rashness imprudence or prejudice of one or more States- Were not these powers vested in Congress by the Union,  Policy, Interest and humanity would dictate the propriety of such a step; For by those we shall secure the countenance, influence and force of the Continent if needed in our favor. It may be objected that the Congress will not intermeddle in a dispute which concerns the Jurisdiction of this State. This objection must appear very flimsey [sic], when we consider, that Congress must now view this defection as instigated by British Administration and their tools here, and that the interest safety and happiness of these States must be affected by it.- It is not therefore probable that such an application would prove abortive- But if it were possible for Congress to view this object in any other light and not attend seriously to it- Any coercive proceedings of ours afterwards would be more warrantable.-
Permit me to observe, that the mode the legislature have adopted to enlarge Sheriff State, by Parliamentary Habeas Corpus backed by the military arm, is not only novel but wears a sanguinary complexion. But 'tis said, this is only the Posse Comitatus to aid the civil Magistrate- I ask  who is to serve the Writ? The Militia? Would it not have been more eligible and regular for the supreme judicial court to have issued and directed a Habeas Corpus to a proper officer, in which case he might take proper aid for the execution of it? This in my opinion would have appeared less hostile & quite as legal as the mode adopted. We can't have forgot that the avowed, ostensible design of sending Troops to Boston was to aid the civil Magistrate in the execution of the Laws, no more than the fatal consequences of the Measure. Let us learn wisdom by their folly.- I tremble lest the consequence of the proposed measure, should prove the loss of lives on both sides. Should that be [inserted: the] case, it will undoubtedly be productive of a train of will not readily foreseen. It will increase [inserted: the] opposition, encourage the hearts and strengthen the hands of the Enemy, being an event devoutly to be wished [inserted: for] by them. The Result of the contest may be an accession of Territory & Subjects to the British dominions in America. Should any of these evils take place will not this State be censored for proceeding in a matter of such moment without  first consulting their Sister States. Tho' I have no doubt of the honest intention of the measure, yet I cannot think it has been maturely considered- And should it prove the loss of two Counties, I am not certain; every person in the State would lament it. I presume you will impute my concern to my timidity, but before you do, consider well whether my fears are well or ill grounded. [A]nd if you should [inserted: think] them groundless, give me leave to say your apprehension will be no justification of the procedure; But [inserted: should] they be realized by the experiment I shall stand acquitted before the Bar of my conscience, as having born my testimony as an individual against yr. Measure. Knowing your candor I have freely offered you my Sentiments upon the Subject, not for your information but for the quiet of my own Mind. I have written a long letter in a short time.
I am Sir
Your most Obedt. hble Servt.
Honble. John Langdon Esqr.
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