“For transporting us beyond seas, to be tried for pretended offenses”

Of late, one of the more discomfiting phrases in the U.S. Declaration of Independence has been this item from the list of what George III had done so tyrannically as to make it necessary for the thirteen colonies participating in the Continental Congress to break off from Britain:

For transporting us beyond seas, to be tried for pretended offenses;...

Today the U.S. of A. has made itself notorious for transporting people across the ocean, to the Spanish-American war trophy of Guantánamo Bay Naval Base, and for creating a system of what look like criminal trials as long as you don’t look too closely for fairness.

Official defenders of that system are now pointing to the end of the trial of Salim Hamdan, with a military jury deciding on a sentence of five and a half years, as proof that it can produce justice. Of course, most of those defenders thought only a much longer sentence would be justice. But if it’s just for Hamdan to be imprisoned for five and a half years for his crimes, then by logic it’s unjust that the U.S. of A. has held him in prisons for over six years so far, and makes no commitment about ever releasing him.

The recent prominence of the “transporting us beyond seas” phrase in the Declaration made me wonder what exactly it referred to. All the complaints in that part of the document were supposed to reflect colonists’ grievances with the government in London, embodied in the king.

Historians usually trace this particular complaint to the Administration of Justice Act, which Parliament passed in May 1774. Here’s the complete text from Yale Law School. Like a lot of other laws, it doesn’t make for comfortable reading, but this is the most important part:

That if any inquisition or indictment shall be found, or if any appeal shall be sued or preferred against any person, for murder, or other capital offence, in the province of the Massachuset’s Bay, and it shall appear, by information given upon oath to the governor, or, in his absence, to the lieutenant-governor of the said province, that the fact was committed by the person...either in the execution of his duty as a magistrate, for the suppression of riots, or in the support of the laws of revenue, or in acting in his duty as an officer of revenue, or in acting under the direction and order of any magistrate, for the suppression of riots, or for the carrying into effect the laws of revenue, or in aiding and assisting in any of the cases aforesaid:

and if it shall also appear, to the satisfaction of the said governor, or lieutenant-governor respectively, that an indifferent trial cannot be had within the said province,

in that case, it shall and may be lawful for the governor, or lieutenant-governor, to direct, with the advice and consent of the council, that the inquisition, indictment, or appeal, shall be tried in some other of his Majesty's colonies, or in Great Britain...

Americans of the time and many historians since have emphasized the phrase “or any other capital offense,” and in the eighteenth century British Empire there were a lot of capital offenses. That interpretation implies that the London government had decreed that it could bring almost anybody to Britain for trial, far away from their families, lawyers, and communities.

But that interpretation doesn’t seem to recognize the law’s most important qualifying phrases. It applied only to people acting as royal officials suppressing riots or collecting Customs duties, or folks helping those officials. It also applied only to Massachusetts. In other words, the Administration of Justice Act was aimed at rescuing officials who had used force to enforce Parliament’s laws from being prosecuted in local courts before hostile local juries.

When Parliament enacted this law, its leaders were probably thinking of Capt. Thomas Preston and the soldiers tried for the Boston Massacre, and Customs employee Ebenezer Richardson tried for killing young Christopher Seider during a small mob attack on his house. Crown officials had worried that those men would hang for what, in their eyes, was clearly self-defense. (In the end, Preston and the soldiers were acquitted or given “benefit of clergy,” branded, and released. Richardson was convicted of murder but pardoned by London and released.)

I’m not sure the Administration of Justice Act as written would have applied to those men. There doesn’t seem to have been a magistrate to assist at the Massacre, and Richardson wasn’t on the job when he got into his fight with the boys. Bostonians had threatened to use the law against other army officers and officials—for example, a grand jury tried to indict an army captain named John Willson for encouraging slaves to revolt. But those efforts fizzled out after people had made their point. I suspect that the threat of officials being put on trial for enforcing Parliament’s laws was still hypothetical, but this new Act still gave those men more security.

So was the Continental Congress justified in complaining about the royal government “transporting us beyond seas...”? Maybe the delegates had another situation in mind, and historians have erred in interpreting the Administration of Justice Act, just as many erred in interpreting the Quartering Act. Clearly political leaders in Massachusetts were worried in early 1775 about being arrested and sent to London for trial as traitors; that’s why Samuel Adams, John Hancock, the Rev. Dr. Samuel Cooper, and others were outside Boston on 18 Apr 1775. But I’m not sure the Crown had ever done that by June 1776, however, and thus I’m not sure whether this Declarative phrase refers to an actual event or even an actual law.

Nonetheless, not transporting people out of their country to be tried in a pretend justice system seems like a good principle for the U.S. of A. to abide by.