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certainly be so for a sedentary scholar or gentfe-. man, I would then propose to form a treasury ,. out of which encouragements to seamen should be paid. To fill this treasury, I would impress, a number of civil officers, who at present have great salaries, oblige them to serve in their respective offices for twenty-five shillings a month, with their shares of mess provisions, and throw the rest of their salaries into the seamen's treasury. If such a press warrant were given me to execute, the first I would press should be a Recorder of Bristol, or a Mr. Justice Foster, because I might have need of his edifying example, to show how much impressing ought to be borne with; for he would certainly find, that though to be reduced to twenty five shillings a month might be a private mischief, yet that, agreeably to his maxim of law and good policy, it ought to be borne with patience, for preventing a national calamity. Then I would press the rest of the judges; and, opening the red book, I would press every civil officer of government from 501. a year salary, up to 50,0001. which would throw an immense sum into our treasury; and these gentlemen could not complain, since they would receive twenty-five shillings a month, and their rations: and this without being obliged to fight. Lastly, I think I would impress * * * *
ON THE CRIMINAL LAWS, AND THE PRACTICE OF PRIVATEERING.
Letter to Benjamin Vaughan, Esq.
March 14th, 1785.
MY DEAR FRIEND.
AMONG the pamphlets you lately sent me, was one entitled, Thoughts on Executive Justice. In return for that, I send you one on the same subject. Observations concernant l' Execution de /' Article II. de la Declaration sur le Vol. They are both addressed to the judges, and written; as you will see, in a very different spirit. The English author is for hanging all thieves. The Frenchman is, for proportioning punishments to offences.
If we really believe, as we profess to believe, that the law of Moses was the law of God, the dictates of divine wisdom, infinitely superior to human; on what principles do we ordain death as the punishment of an offence, which according. to that law, was only to be punished (by a restitution of fourfold ?—To put a man to death for an offence which does not deserve death, is it not a murder? And as the French writer says,.. Doit-on pueir un delit eontre la societe par un crime contre la nature?
Superfluous property is the creature of society. Simple and mild laws were sufficient to guard the property that was merely necessary. The savage's bow, his hatchet, and his coat of skins), were sufficiently secured, without law, by the fe»& of personal resentment and retaliation. When, by virtue of the first laws, part of the society accumulated wealth, and grew powerful, they enacted, others more severe, and would protect their property at the expense of humanity. This was abusing their power, and commencing a tyranny. If a savage, before he entered into society, had been told—" Your neighbour by this. means, may become owner of an hundred deer; but if your brother, or your son, or yourself, having no deer of your own, and being hungry, should kill one, an infamous death must be the consequence:" he would probably have preferred his liberty, and his common right of killing any deer, to all the advantages of society that might be proposed to him.
That it is better a hundred guilty persons should escape, than that one innocent person should suffer, is a maxim that has been long and gene rally approved; never, that I know of, controverted. Even the sanguinary author of the thoughts agrees to it, adding well, "that the very thought of injured innocence, and much more that of suffering innocence, must awaken all our tenderest and most compassionate feelings, and at the same time raise our highest indignation against the instruments of it. But," he adds, "there is no danger of either from a strict adherence to the laws."—Really !r—Is it then impossible to make an unjust law? and if the law itself be unjust, may it not be the very " instrument" which ought "to raise the author's, and every body's highest indignation?" I see, in the last »
newspapers from London, that a woman is capitally convicted at the Old Baily, for privately stealing out of a shop some gauze, value fourteen shillings and three-pence: Is there any proportion between the injury done by a theft, value fourteen shillings and three-pence, and the punishment of a human creature by death pn » gibbet? Might not that woman, by her labour, have made the reparation ordained by God, in paying fourfold? Is not all punishment inflicted beyond the merit of the offence, so much punish, ment of innocence? In this light, how vast is the annual quantity, of not only injured but suffering innocence, in almost all the civilized states of Europe 1
. But it seems to have been thought that this kind of innocence may be punished by way of preventing crimes. I have read indeed of a cruel Turk in Barbary, who, whenever he bought a new Christian slave, ordered him immediately to be hung up by the legs, and to receive a hundred blows of a cudgel on the soles of his feet, that the severe sense of the punishment, and fear of incurring it thereafter, might prevent the faults that should merit it. Our author himself would hardly approve entirely of this Turk's conduct in the government of slaves; and yet he appears to recommend something like it for the government of English subjects, when he applauds the reply of judge Barnet to the convict horse-stealer; who being asked what he had to <ay why judgment of death should not pass against him, and answered that it was hard. to hang a man for only stealing a horse, was told by the judge, "man, thou art not to be hanged only for stealing a horse, but that horses may not be stolen." The man's answer, if candidly examined, will, I imagine, appear reasonable, as being founded on the eternal principle of justice and equity, that punishments should be proportioned to offences, and the judge's reply brutal and unreasonable, though the writer wishes all judges to carry it with them whenever they go to the circuit, and to bear it in their minds, as containing a wise reason for all the penal statutes which they are called upon to put in execution. It at once illustrates (says he) the true grounds and reasons of all capital punishments whatsoever, namely, that every man's property, as well a his life, may be held sacred and inviolate." Is there then no difference in value between property and life? If I think w right that the crime of murder should be punished with death, not only as an equal punishment of the crime, but to prevent other murders,. does it follow that I must approve of the same punishment for a little invasion on my property by theft? If I am not myself so barbarous, so bloody-minded, and revengeful, as to kill a fellow creature for stealing from me fourteen shillings and three-pen re, how can I approve of a law that does it? Montesquieu-, who was himself a judge, endeavours to impress other maxims* He must have known what humane judges feel on such occasions, and what the effects of those feelings: and, so far from thinking that severe