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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 subject, Observatians concernant l'Execution de
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 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, 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 neighbour, by this means, may become 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 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, ad ding well," that the very thought of injured inno tence, 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 adherance 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 labour, have made the reparation ordained by God in paying four fold? 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, 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 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 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 excessive punishments prevent crimes, he asserts, as quoted by cur French writer, that
"L'atrocité des loix en einpêche 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 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 our 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 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 casy 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? Piraterie, as the French call it, or privateering, is the universal bent of the English natior, 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 of those privateering merchants of London, who were so ready to rob the merchants of Amsterdam, that would not as readily plunder another London mer
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 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 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."
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 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 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 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 natron had a hand in promoting the war against the colonies, prizes and confiscations are believed to have
een a considerable motive.
It has been for some time a generally-received opinion, that a military man is not to inquire whether