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ON THE CRIMINAL LAWS AND THE PRAC
TICE OF PRIVATEERING.
Letter to Benjamin Vaughan, Esq.
March, 14, 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 a French one on the same fubjeci, Observatians concernant l'Execution de rArticle II. de la Declaration 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 pro portioning 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 hunian; op · what principle 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 murder? And as the French writer says, Doit-on punir un delit contre le 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, bis hatchet, and his coat of skins, were suffic ciently secured, without law, by the fear of personal resentment and retaliation. When, by virtue of the first laws, part of the sociaty accumulated wealth and grew powerful, they enacted others more severe, and would protect their property at the expense of hu. manity. 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 a hundred deer; but if your brother, or your son, or yourself, having
AO iver of your own, and being hungry, should kill one, an infamous death inust be the consequence," he would probably have preferred his liberty, and his common right of killing any deer, to all the ad. vanages 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; Qever, that I know of, controverted. Even tha sanguinary author of the Thoughts agrees to it, ad ding well, “ that the very thoughé of injured inno sence, and much more that of suffering innocence, must awaken all our tenderest and most compas. sionate feelings, and at the same time raise our high est indignation against the instruments of it. But," he adds, “there is no danger of either, from a strict adherance to the laws."- Really is it then impo3sible to mako 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 Bailey, 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, on a gibhet? Might not that woman, by her labour, have made the eparation ordained by God ir paying four fold? Is not all punishment inflicted beyond the merit of the otfence, so much punishment of innocence ? In this light, how vast is the annual quantity, of not only injured but suffering innocence, in almost al the civilized states of Europe!
But it seeins 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 pun. ishment, and fear of incurring it thereafter, might
prevent the faults that should merit it. Our autha himself would hardly approve entirely of this Turki conduct in the government of slaves; and yet he as pears to recomiend something like it for the goven. ment 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, 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 principles of justice and equity, that punishments should be proportioned to offences; and the judge's reply brutal and unreason. able, though the writer “ wisiies 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 nian'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 punishanent of the crime, but to prevent other mur. ders, does it follow that I must approve of inflicting the same punishinent for a little invasion on ny property by iheft? If I am not myself so barbarous, so bloody-minded, and revengeful, as to kill a fellowcreature 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 excer tive punishments prevent crimes, he asserts, as ( loted by cur French wiiter, 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'impunité des criines, et non de la moderation des
It is said by those who know Europe generally, that there are more thefts committed and punisherl annually in England, than in all the other nation put together. If this be so, there must be a cause o causes for such a depravity in our common people. May not one be the deficiency of justice and inorali. ty in our national government, manifested in our oppressive conduct to subjects, and unjust wars on our neighbours? View the long-persisted in, unjust, monopolizing treatment of Ireiand, at length acknow ledged ! View the plundering government exercised by our 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 aid pillage; the hopes of an immense and easy prey being its only apparent, and probably its true and real motive and encouragement. Justice is as strictly due between neighbour nations, as between neighbour citizens. A highwayınan is as much a robber when he plunders in a gang, as when single; and a nation that makes an unjust war is only a great gang. After en ploying your people in roibing the Dutch, is it strange, that, being put out of that em. plov by peace, they still continue robbing, and rob one another? Piraterie, as the French call it, or pri. va teering, is the universal bent of the English nation at hoine and abroad, wherever settled. No less than Feven hundred privateers were, it is said, commis sioned in the last war! These were fitted out by mer. chants, to piey upon other merchants, who had riever done them any injury. Is there probably any of lose privateering merchants of London, who were sr ready to rob the merchants of Amsterdam, that V d not as readily plunder another London mei
chant, of the next street, if he could do it with the same impunity? The avidity, the alieni appetens is the same; it is the fear alone of the gallows that makes the difference. How then can a nation, which among the honestest of its people, has so many thieves by inclination, and whose governnent en couraged and comunissioned no less than seven hun dred gangs of robbers; how can such a nation have the face to condemn the crime in individuals, and hang up twenty of thein in a morning! It naturally puts one in mind of a Newgate anecdote. One of th prisoners complained, that in the night somebody had taken his buckles out of his shoes. “ What the devil!" says another, “ have we then thieves amongst us! It must not be suffered. Let us search out the rogue, and pump him to death."
I'here is, however, one late instance of an English merchant who will not profit by such ill-gotten gain. He was, it seems, part-owner of a ship, which tho other owners thought fit to employ as a letter of marque, which took a number of French prizes. The booty being shared, he has now an agent here inquiring, by an advertisement in the Gazette, for those who have suffered the loss, in order to make them, as far as in hini lies, restitution. This conscientious inan is a quaker. The Scotch presby. terians were forinerly as tender; for there is still extant an ordinance of the town-council of Edinburgh, made soon aster the Reformation, “ forbidding the purchase of prize goods, under pain of losing the freedom of the burgh for ever, with other punishments at the will of the magistrate; the practice of making prizes being contrary to good conscience, and he rule of treating Christian brethren as we woull De treated; and such goods are not to be sold by any godly man within this burgh.” The race of these godly men in Scotland are probably extinct, or c'ieir principles abandoned, since, as far as that na. t'on had a hard in promoting the war against the colonies, prizes and confiscations are believed to have leen a considerable motive.
It has been for some time a generally-received opinion, that a military man is not to inquire whethus