War is at present carried on between the king’s natural and foreign troops, on one side, and the English in America, on the other, upon the usual footing of other wars; and accordingly an exchange of prisoners has been regularly made from the beginning.  If, notwithstanding this hitherto equal procedure, upon some prospect of ending the war with success (which, however, may be delusive) administration prepares to act against those as traitors who remain in their hands at the end of the troubles, in my opinion we shall exhibit to the world as indecent a piece of injustice as ever civil fury has produced.  If the prisoners who have been exchanged have not by that exchange been virtually pardoned, the cartel (whether avowed or understood) is a cruel fraud; for you have received the life of a man, and you ought to return a life for it, or there is no parity or fairness in the transaction.

If, on the other hand, we admit that they who are actually exchanged are pardoned, but contend that you may justly reserve for vengeance those who remain unexchanged, then this unpleasant and unhandsome consequence will follow:  that you judge of the delinquency of men merely by the time of their guilt, and not by the heinousness of it; and you make fortune and accidents, and not the moral qualities of human action, the rule of your justice.

These strange incongruities must ever perplex those who confound the unhappiness of civil dissension with the crime of treason.  Whenever a rebellion really and truly exists, which is as easily known in fact as it is difficult to define in words, government has not entered into such military conventions, but has ever declined all intermediate treaty which should put rebels in possession of the law of nations with regard to war.  Commanders would receive no benefits at their hands, because they could make no return for them.  Who has ever heard of capitulation, and parole of honor, and exchange of prisoners in the late rebellions in this kingdom?  The answer to all demands of that sort was, “We can engage for nothing; you are at the king’s pleasure.”  We ought to remember, that, if our present enemies be in reality and truth rebels, the king’s generals have no right to release them upon any conditions whatsoever; and they are themselves answerable to the law, and as much in want of a pardon, for doing so, as the rebels whom they release.

Lawyers, I know, cannot make the distinction for which I contend; because they have their strict rule to go by.  But legislators ought to do what lawyers cannot; for they have no other rules to bind them but the great principles of reason and equity and the general sense of mankind.  These they are bound to obey and follow, and rather to enlarge and enlighten law by the liberality of legislative reason than to fetter and bind their higher capacity by the narrow constructions of subordinate, artificial justice.  If we had adverted to this, we never could consider the convulsions of a great empire, not disturbed by a little disseminated faction, but divided by whole communities and provinces, and entire legal representatives of a people, as fit matter of discussion under a commission of Oyer and Terminer.  It is as opposite to reason and prudence as it is to humanity and justice.