« ZurückWeiter »
Page 174. “ I hardly admit,” &c.-(Paragraph 5.) When this author speaks of impressing, page 158, he diminishes the horror of the practice as much as possible, by presenting to the mind one sailor only suffering a “hardship,” (as he tenderly calls it) in some particular cases” only; and he places against this private mischief the inconvenience to the trade of the kingrlom. But if, as he supe poses is often the case, the sailor who is pressed and obliged to serve for the defence of trade, at the rate of twenty five shillings a month, could get three pouls fifteen shillings in the merchant's service, you take from him fifty shillings a month; and if you have 100,000 in your service, you role this honest industrious part of society and their poor families of £250,000 per month, or three millions a year, and at the same time oblige them to hazard their lives in fighting for the defence of your trade; to the defence of which all ought indeed to contribute (and sailors among the rest) in proportion to their profits by it; but this three millions is more than their share, if they do not pay with their persons; but when you force that, methinks you should excuse the other.
But, it may be sail, to give to the king's seamen merchants' wages would cost the nation too much, and call for
The question then will amount to this: whether it be just in a community, that the richer part should compel the poorer to fight in defence of them and their properties, for such wages as they think fit to allow, and punish them if they refuse? Our author tells us that it is “egal.” I have not law enough to dispute his authorities, but I cannot persuade myself that it is equitable. I will, however, own for the present, that it may be lawful when necessary; but then I contend that it may be used so as to pro:luce the same good effects the public security, without doing so much intolerable injustice as attends the impressing of common scamen. In order to be better understood I would premise iwo things: First, That voluntary seamen tilay be had for the service, if they were sufficiently paid. The proof is, that to serve in the saine ship, and incur the same dangers, you have no occasion to impress captains, lieutenants, second lieutenants, midshipmien, pursers, nor many other officers. Why, but that the profits of their places, or the emoluments expected, are sufficient induce
ments? The business then is, to find money, by impressing, sufficient to make the sailors all volunteers, as well as their officers; and this without any fresh burden upon trade.The second of my premises is, that twenty five shillings a month, with his share of the salt beef, pork, and peas-pudding, being found sufficient for the subsistence of a hard working seaman, it will certainly be so for a sedentary scholar or gentleman. 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 à month with their share of mess provisions, and throw the rest of their salaries into the seaman'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 sought 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 £50 a year salary up to £50,000, 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 PRAC
TICE OF PRIVATEERING.
LETTER TO BENJAMIN VAUGHAN, ESQ. MY DEAR FRIEND,
March 14, 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'Execution de l'Article 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 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 delit contre 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 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 neighbor, by this means, may become owner of a hundred deer; bul 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 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 imocence, and much more that of suffering innocence, inust 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 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 gibbet? Might not that 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 preventixg 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 cone duct 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, 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 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 three pence, how can I approve of a law that does it? Montesquieu, who was himself a judge, endeavors to impress other maxims.
He must have known what humane judges feel on such occasions, and what the effect 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'atrocite des loix en empeche l'execution,
"Loreque la peine est sans mesure, on est souvent oblige de lui preferer l'inpunite.
“La cause de tous les relachemens vient de l'impunite des crimes, et non de la moderation des peines.”
It is said by those who know Europe generally, that there are more thefts committed and punished annually in Ena gland, than in all the other nations put together. If this be so, there must be a cause or causes for such a depravity in our common people. May not one be the deficiency of justice and morality in our national government, manifested in our oppressive conduct to subjects, and unjust wars on our neighbors ? View the long-persisted in, unjust, monopolizing treatment of Ireland, at length acknowledged ! View the plundering government exercised by our merchants in the Indies; the confiscating war made upon the