ON THE CRIMINAL LAWS, AND THE PRACTICE OF PRIVATEERING.

LETTER TO BENJAMIN VAUGHAN, ESQ.

MY DEAR FRIEND,

March 14th, 17856

AMONG the pamphlets you lately fent me, was one, entitled, Thoughts on Executive Justice. In return for that, I send you a French one on the fame fubject, Obfervations concernant l'Exécution de P'Article II. de la Déclaration fur le Vol. They are both addreffed to the judges, but written, as you will fee, in a very different fpirit. 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 Mofes was the law of God, the dictate of divine wisdom, infinitely fuperior 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 reftitution 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 focieté par un crime contre la nature?

Superfluous property is the creature of fociety; Simple and mild laws were fufficient to guard the property that was merely neceffary. The favage's bow, his hatchet, and his coat of fkins, were fufficiently fecured, without law, by the fear of perfonal refentment and retaliation. When, by virtue of the firft laws, part of the fociety accumulated

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mulated wealth and grew powerful, they enacted others more fevere, and would protect their property at the expence of humanity. This was abufing their power, and commencing a tyranny. If a favage, before he entered into fociety, had been told Your neighbour, by this means, may become owner of an hundred deer; but if your brother, or your fon, or yourself, having "no deer of your own, and being hungry, "fhould kill one, an infamous death must be the "confequence:" 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 perfons fhould escape, than that one innocent perfon should fuffer, is a maxim that has been long and generally approved; never, that I know of, controverted. Even the fanguinary author of the Thoughts agrees to it, adding well," that the very thought of injured innocence, and much more that of fuffer"ing innocence, muft awaken all our tendereft and moft compaffionate feelings, and at the fame time raise our higheft indignation againft "the inftruments of it. But," he adds, "there is no danger of either, from a strict adherence to the laws."-Really!-Is it then impoffible to make an unjuft law? and if the law itself be unjuft, may it not be the very "inftrument" which ought" to raise the author's, and every "body's highest indignation?" I fee, in the laft newspapers from London, that a woman is capitally convicted at the Old Bailey, for privately ftealing out of a fhop fome gauze, value fourteen fhillings and three-pence: Is there any proportion between the injury done by a theft, value fourteen fhillings and three-pence, and the punishment of a human creature, by death, on a gibbet?

Might not that woman, by her labour, have made the reparation ordained by God, in paying four. fold? Is not all punishment inflicted beyond the merit of the offence, fo much punishment of innocence? In this light, how vaft is the annual quantity, of not only injured but fuffering innocence, in almoft all the civilized ftates 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 Chriftian flave, ordered him immediately to be hung up by the legs, and to receive a hundred blows of a cudgel on the foles of his feet, that the fevere fenfe of the punishment, and fear of incurring it thereafter, might prevent the faults that fhould merit it. Our author himfelf would hardly approve entirely of this Turk's conduct in the government of flaves; and yet he appears to recommend fomething like it for the government of English fubjects, when he applauds the reply of Judge Burnet to the convict horfe-ftealer; who being asked what he had to fay why judgment of death fhould not pass against him, and anfwering, that it was hard to hang a man for only ftealing a horse, was told by the judge," Man, thou art "not to be hanged only for ftealing a horse, but "that horfes may not be ftolen." The man's anfwer, if candidly examined, will, I imagine, appear reasonable, as being founded on the eternal principle of juftice 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 wife reason for all "the penal ftatutes which they are called upon to "put in execution. It at once illuftrates," fays

he,

he," the true grounds and reasons of all capital punifhments whatfoever, namely, that every "man's property, as well as his life, may be held "facred 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 muft approve of inflicting the fame punishment for a little invafion on my property by theft? If I am not myself fo barbarous, fo bloody-minded, and revengeful, as to kill a fellow-creature for ftealing from me fourteen fhillings and three-pence, how can I approve of a law that does it? Montefquieu, who was himself a judge, endeavours to imprefs other maxims. He must have known what humane judges feel on fuch occafions, and what the effects of thofe feelings; and, fo far from thinking that severe and exceffive punishments prevent crimes, he afferts, as quoted by our French writer, that "L'atrocité des loix en empêche l'exécution.

Lorfque la peine eft fans mefure, on est souvent "obligé de lui préférer l'impunité.

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

It is faid by those who know Europe generally, that there are more thefts committed and punifhed annually in England, than in all the other nations put together. If this be fo, there muft be a caufe or caufes for fuch depravity in our common people. May not one be the deficiency of juftice and morality in our national government, manifefted in our oppreffive conduct to fubjects, and unjust wars on our neighbours? View the long-perfifted in, unjuft, monopolizing treatment of Ireland, at length acknowledged! View the plundering

plundering government exercised by our merchants in the Indies; the confifcating 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 immenfe and cafy prey being its only apparent, and probably its true and real motive and encouragement. Juftice is as ftrictly due between neighbour nations as between neighbour citizens. A highway-man is as much a robber when he plunders in a gang, as when fingle; and a nation that makes an unjuft war is only a great gang. After employing your people in robbing the Dutch, is it strange that, being put out of that employ by peace, they ftill continue robbing, and rob one another? Piraterie, as the French call it, or privateering, is the univerfal bent of the English nation, at home and abroad, wherever fettled. No less than seven hundred privateers were, it is faid, commiffioned in the laft war! Thefe were fitted out by merchants, to prey upon other merchants, who had never done them any injury. Is there probably any one of those privateering merchants of London, who were fo ready to rob the merchants of Amfterdam, that would not as readily plunder another London merchant of the next ftreet, if he could do it with the fame impunity! The avidity, the alieni appetens is the fame; 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 fo many thieves by inclination, and whofe government encouraged and commiffioned no less than feven hundred gangs of robbers; how can fuch a nation have the face to condemn the crime in individuals, and hang up twenty of them in a morning! It natu

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