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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 VOL. II.
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'impunité 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 annually 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."
apparent, and probably its true and real motive and encouragement. Justice is as strictly due between neighbour nations as between neighbour citizens. A highwayman 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 employing your people in robbing the Dutch, strange is it, that, being put out of that employ by peace, they still continue robbing, and rob one another Piraterie, as the French call it, or privateering, is the universal bent of the English nation, at home and abroad, wherever settled. No less than seven hundred privateers were, it is said, commissioned in the last war! These 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 so ready to rob the merchants of Amsterdam, that would not readily plunder another London merchant of the next street, if he could do it with 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 government encouraged and commissioned no less than seven hundred gangs of robbers; how can such a nation have the face to condemn the crime in individuals, and hang up twenty of them in a morning? It naturally puts one in mind of a Newgate anecdote. One of the prisoners complained, that in the night somebody had taken his buckles out of his shoes; “What, the devil!” says another, “have we then thieves among us? It must not be suffered; let us search out the rogue, and pump him to death.” There 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 the other owners thought fit to employ as a letter of marque, and 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 suffered the loss, in order to make them, as far as in him lies, restitution. This conscientious man is a Quaker. The Scotch Presbyterians were formerly as tender; for there is still extant an ordinance of the town-council of Edinburgh, made soon after the Reformation, “forbidding the purchase of prize goods, under pain of losing the freedom of the burgh for ever, with other punishment at the will of the magistrate; the practice of making prizes being contrary to good conscience, and the rule of treating Christian brethren as we would wish to be treated; and such goods are not to be sold by any godly men within this burgh." The race of these godly men in Scotland is probably extinct, or their principles abandoned ; since, as far as that nation had a hand in promoting the war against the colonies, prizes and confiscations are believed to have been a considerable motive.
It has been for some time a generally received opinion, that a military man is not to inquire whether a war be just or unjust; he is to execute his orders. All princes who are disposed to become tyrants must probably approve of this opinion, and be willing to establish it; but is it not a dangerous one ? since, on that principle, if the tyrant commands his army to attack and destroy, not only an unoffending neighbour nation, but even his own subjects, the army is bound to obey. A negro slave, in our colonies, being commanded by his master to rob or murder a neighbour, or do any other immoral act, may refuse, and the