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owner of a 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 probably have preferred his liberty, and his common right of killing any deer, to all the advantages of society that might he 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 every body's highest indignation ?” I see in the last newspapers from London, that a woman is capitally convicted at the Old Baily, 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 that woman, by her labour 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 hereafter, 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, 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 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 ? 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'atrocite des loix en empeche l' execution.
“ Lorsque la peine est sans mesure, on est souvent oblige de lui preferer l'impunite.
“La cause de tousles relachemens vient de l'impunite des crinies 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 England, 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 onr neighbours ? 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 contiscating 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 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, is it strange, that being put out of that employ by peace, they still continue robbing, and rob one another ? Piraterte, 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 as readily plunder another London merchant, 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, have 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 oka 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 amongst 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, which took a namber 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 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 punishments 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 man within this burgh.” The race of these godly men in Scotland, are 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 magistrate will protect him in his refusal. The slavery then of a soldier is worse than that of a negro ! A conscientious officer, if not restrained by the apprehension of its being imputed to another cause, may indeed resign, rather than be employed in an unjust war; but the private men are slaves for life; and they are perhaps, incapable of judging for themselves. We can only lament their fate, and still more that of a sailor, who is often dragged by force from his honest occupation, and compelled to imbrue his hands in perhaps innocent blood. But, methinks, it well behoves merchants (men more enlightened by their education, and perfectly free from any such force or obligation) to consider well of the justice of a war, before they voluntarily engage a gang of ruffians to attack their fellow merchants of a neighbouring nation, to plunder them of their property, and perhaps ruin them and their families, if they yield it; or to wound, maim, and murder them, if they endeavour to defend it. Yet these things are done by Christian merchants, whether a war be just or unjust ; and it can hardly be just on both sides. They are done by English and American merchants, who nevertheless, complain of private theft, and hang by the dozens thé thieves they have taught hy their own example.
It is high time, for the sake of humanity, that a stop were put to this enormity. The United States of America, though better situated than any European nation
to make profit by privateering (most of the trade of Europe with the West Indies, passing before their doors) are, as far as in them lies, endeavouring to abolish the practice, by offering, in all their treaties with other puwers, an article, engaging solemnly, that in case of future war, no privateer shall be commissioned on either side; and that unarmed merchant ships, on both sides, shall pursue their voyages unmolested.* This will be a happy improvement of the law of nations. The humane and the just cannot but wish general success to the proposition. With unchangeable esteem and affection,
I am, my dear friend, ever yours.
* This offer having been accepted by the late King of Prussia, a treaty of amity and commerce was concluded between that monarch and the United States, containing the following humane, philanthropic article ; in the formation of which Dr. Franklin, as one of the American plenipotentiaries, was principally concerned, viz.
ART. XXIII. If war should arise between the two contracting parties, the merchants of either country, then residing in the other, shall be allowed to remain nine months to collect their debts and settle their affairs, and may depart freely, carrying off all their effects without molestation or hindrance; and all women and children, scholars of every faculty, cultivators of the earth, artisans, manufacturers, and fishermen, unarmed, and inhabiting unfortified towns, villages, and places, and, in general, all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt, or otherwise destroyed, nor their fields wasted by the armed force of the enemy into whose power, by the events of war, they may happen to fall; but if any thing is necessary to be taken from them for the use of such armed force, the same shall be paid for at a reasonable price. And all merchant and trading vessels employed in exchanging the products of different places, and thereby rendering the necessaries, conveniences, and comforts of human life more easy to be obtained, and more general, shall be allowed to pass free and unmolested ; and neither of the contracting powers shall grant or issue any comunission to any private armed vessels, empowering them to take or destroy such trading vessels, or interrapt such commerce.