ON THE CRIMINAL LAWS

AND THE PRACTICE OF PRIVATEERING.

The following paper was written in the form of a letter to Mr. Benjamin Vaughan, and dated at Passy, March 14th, 1785. It first appeared anonymously in a small volume published by Sir Samuel Romilly, in the year 1786, being OBSERVATIONS on a treatise by Dr. Madan, entitled "Thoughts on Executive Justice.” The letter contains remarks on the same publication. It was communicated by Mr. Vaughan to Sir Samuel Romilly, who printed it at the end of his OBSERVATIONS, under the title of "A Letter from a Gentleman abroad to his Friend in England," and prefixed to it an explanatory advertisement.

"The writer of the foregoing Observations," says he, "having been favored with a copy of the following letter by a friend of his, to whom it was addressed, thought he should render a very ac ceptable service to the public by printing it. At the same time he cannot but feel it incumbent on him to make some apology for publishing it in the form of an Appendix to a work, which it very far surpasses in every kind of merit. The truth is, he was not at liberty to print it any other manner. The simplicity of style and liberality of thought, which distinguish it, cannot fail of discover ing its venerable author to such as are already acquainted with his valuable writings. To those, who have not that good fortune, the editor is not permitted to say more, than that it is the produc tion of one of the best and most eminent men of the present age."

This testimony is valuable from such a man as Sir Samuel Romilly. And indeed the letter may well be classed among the best of the author's writings, whether regarded as to the vigor and clearness of the style, the benign spirit it breathes, or its bold defence of the rights of humanity and justice. - EDITOR.

MY DEAR FRIEND,

March 14th, 1785.

Among the pamphlets you lately sent me was one entitled "Thoughts on Executive Justice." In return

for that, I send you a French one on the same subject, Observations concernant l'Exécution de l'Article II. de la Déclaration sur le Vol. They are both addressed to the judges, but 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 dictate 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 punir un délit contre la société 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 fear 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

* "Ought an offence against society to be punished by a crime against nature ? "

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 generally 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! 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 everybody's highest indignation"? I see, in the last newspapers from London, that a woman is capitally convicted at the Old Bailey, for privately stealing out of a shop some gauze, value fourteen shillings and threepence; is there any proportion between the injury done by a theft, value fourteen shillings and threepence, and the punishment of a human creature, by death, on a gibbet? Might not the woman, by her labor, have made the reparation ordained by God, in paying fourfold? Is not all punishment inflicted beyond the merit of the offence, so much punishment 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!

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 Burnet to the convict horse-stealer, who, being asked what he had to say why judgment of death should not pass against him, and answering, than 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, but that horses may not be stolen."

The man's answer, if candidly examined, will I imagine appear reasonable, as 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 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 as his life, may be held sacred and inviolate." Is there then no difference in value between property and life? If I think it 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 inflicting 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 threepence, 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 and excessive punishments prevent crimes, he asserts, as quoted by our French writer, that

L'atrocité des loix en empêche l'exécution.

Lorsque la peine est sans mesure, on est souvent obligé de lui préférer l'impunité.

La cause de tous les relâchemens vient de l'impu nité des crimes, et non de la modération des peines."

It is said by those who know Europe generally, that there are more thefts committed and punished an- · nually in England, than in all the other nations put together. If this be so, there must be a cause or causes for such depravity in your common people. May not one be the deficiency of justice and morality in your national government, manifested in your oppressive conduct to your subjects, and unjust wars on your neighbours? View the long-persisted in, unjust monopolizing treatment of Ireland at length acknowledged? View the plundering government exercised by your merchants in the Indies; the confiscating war made upon the American colonies; and, to say nothing of those upon France and Spain, view the late war upon Holland, which was seen by impartial Europe in no other light than that of a war of rapine and pillage; the hopes of an immense and easy prey being its only

"The atrocity of laws prevents their being executed.

"When the punishment is excessive, it is often found necessary to prefer impunity.

"The cause of all the violations of the laws comes from the impunity of crimes, and not from the moderation of the penalties."