a late law, appropriated to the discharge of our public debt, to
defray the expences of the state. None but members of parliament,
and a few public officers have now a right to avoid, by a frank, the
payment of postage. When any letter, not written by them or on their
business, is franked by any of them, it is a hurt to the revenue, an
injury which they must now take the pains to conceal by writing the
whole superscription themselves. And yet such is our insensibility
to justice in this particular, that nothing is more common than to
see, even in a reputable company, a _very honest_ gentleman or lady
declare his or her intention to cheat the nation of three-pence by
a frank, and without blushing apply to one of the very legislators
themselves, with a modest request, that he would be pleased to become
an accomplice in the crime, and assist in the perpetration.
There are those who by these practices take a great deal in a year
out of the public purse, and put the money into their own private
pockets. If, passing through a room where public treasure is
deposited, a man takes the opportunity of clandestinely pocketing and
carrying off a guinea, is he not truly and properly a thief? And if
another evades paying into the treasury a guinea he ought to pay in,
and applies it to his own use, when he knows it belongs to the public
as much as that which has been paid in, what difference is there in
the nature of the crime, or the baseness of committing it?
Some laws make the receiving of stolen goods equally penal with
stealing, and upon this principle, that if there were no receivers
there would be few thieves. Our proverb too says truly, that _the
receiver is as bad as the thief_. By the same reasoning, as there
would be few smugglers, if there were none who knowingly encouraged
them by buying their goods, we may say, that the encouragers of
smuggling are as bad as the smugglers; and that, as smugglers are a
kind of thieves, both equally deserve the punishments of thievery.
In this view of wronging the revenue, what must we think of those who
can evade paying for their wheels and their plate, in defiance of law
and justice, and yet declaim against corruption and peculation, as if
their own hands and hearts were pure and unsullied? The Americans
offend us grievously, when, contrary to our laws, they smuggle goods
into their own country: and yet they had no hand in making those
laws. I do not however pretend from thence to justify them. But
I think the offence much greater in those who either directly or
indirectly have been concerned in making the very laws they break.
And when I hear them exclaiming against the Americans, and for every
little infringement of the acts of trade, or obstruction given by a
petty mob to an officer of our customs in that country, calling for
vengeance against the whole people as REBELS and traitors, I cannot
help thinking there are still those in the world who can _see a mote
in their brother's eye, while they do not discern a beam in their
own_; and that the old saying is as true now as ever it was, _one man
may better steal a horse, than another look over the hedge_.
F. B.
FOOTNOTE:
[90] This letter is extracted from the London Chronicle, for November
24, 1767, and is addressed to the printer of that newspaper. B. V.
_Observations on War[91]._
By the original law of nations, war and extirpation were the
punishment of injury. Humanizing by degrees, it admitted slavery
instead of death: a farther step was the exchange of prisoners
instead of slavery: another, to respect more the property of private
persons under conquest, and be content with acquired dominion. Why
should not this law of nations go on improving? Ages have intervened
between its several steps: but as knowledge of late increases
rapidly, why should not those steps be quickened? Why should it
not be agreed to, as the future law of nations, that in any war
hereafter the following description of men should be undisturbed,
have the protection of both sides, and be permitted to follow their
employments in security? viz.
1. Cultivators of the earth, because they labour for the subsistence
of mankind.
2. Fishermen, for the same reason.
3. Merchants and traders in unarmed ships, who accommodate different
nations by communicating and exchanging the necessaries and
conveniences of life.
4. Artists and mechanics, inhabiting and working in open towns.
It is hardly necessary to add, that the hospitals of enemies should
be unmolested--they ought to be assisted. It is for the interest of
humanity in general, that the occasions of war, and the inducements
to it, should be diminished. If rapine be abolished, one of the
encouragements to war is taken away; and peace therefore more likely
to continue and be lasting.
The practice of robbing merchants on the high seas--a remnant of
the antient piracy--though it may be accidentally beneficial to
particular persons, is far from being profitable to all engaged in
it, or to the nation that authorises it. In the beginning of a war,
some rich ships are surprized and taken. This encourages the first
adventurers to fit out more armed vessels, and many others to do the
same. But the enemy at the same time become more careful, arm their
merchant ships better, and render them not so easy to be taken:
they go also more under the protection of convoys. Thus, while
the privateers to take them are multiplied, the vessels subject to
be taken, and the chances of profit, are diminished; so that many
cruises are made wherein the expences overgo the gains, and, as is
the case in other lotteries, though particulars have got prizes, the
mass of adventurers are losers, the whole expence of fitting out all
the privateers during a war being much greater than the whole amount
of goods taken.
Then there is the national loss of all the labour of so many men
during the time they have been employed in robbing, who besides
spend what they get in riot, drunkenness, and debauchery, lose their
habits of industry, are rarely fit for any sober business after
a peace, and serve only to increase the number of highwaymen and
housebreakers. Even the undertakers, who have been fortunate, are by
sudden wealth led into expensive living, the habit of which continues
when the means of supporting it cease, and finally ruins them: a just
punishment for their having wantonly and unfeelingly ruined many
honest, innocent traders and their families, whose substance was
employed in serving the common interest of mankind.
FOOTNOTE:
[91] From the American Museum, Vol. VII. p. 101. _Editor._
_Notes copied from Dr. Franklin's writing in pencil in the margin
of Judge Foster's celebrated argument in favour of the Impressing
of Seamen (published in the folio edition of his works)[92]._
Judge Foster, p. 158. "Every man."--The conclusion here, from the
_whole to a part_, does not seem to be good logic. If the alphabet
should say, Let us all fight for the defence of the whole, that is
equal, and may therefore be just. But if they should say, Let A B C
and D go out and fight for us, while we stay at home and sleep in
whole skins, that is not equal, and therefore cannot be just.
_Ib._ "Employ."--If you please. The word signifies engaging a man to
work for me, by offering him such wages as are sufficient to induce
him to prefer my service. This is very different from compelling him
to work on such terms as I think proper.
_Ib._ "This service and employment, &c."--These are false facts. His
employments and service are not the same.--Under the merchant he
goes in an unarmed vessel, not obliged to fight, but to transport
merchandise. In the king's service he is obliged to fight, and to
hazard all the dangers of battle. Sickness on board of king's ships
is also more common and more mortal. The merchant's service too
he can quit at the end of the voyage, not the king's. Also, the
merchant's wages are much higher.
_Ib._ "I am very sensible, &c."--Here are two things put in
comparison that are not comparable: viz. injury to seamen, and
inconvenience to trade. Inconvenience to the whole trade of a nation
will not justify injustice to a single seaman. If the trade would
suffer without his service, it is able and ought to be willing
to offer him such wages, as may induce him to afford his service
voluntarily.
Page 159. "Private mischief must be borne with patience, for
preventing a national calamity."--Where is this maxim in law and
good policy to be found? And how can that be a maxim, which is not
consistent with common sense? If the maxim had been, that private
mischiefs, which prevent a national calamity, ought to be generously
compensated by the nation, one might understand it: but that such
private mischiefs are only to be borne with patience, is absurd!
_Ib._ "The expedient, &c. And, &c." (Paragraphs 2 and 3).--Twenty
ineffectual or inconvenient schemes will not justify one that is
unjust.
_Ib._ "Upon the foot of, &c."--Your reasoning, indeed, like a lie,
stands but upon one _foot_, truth upon two.
Page 160. "Full wages."--Probably the same they had in the merchant's
service.
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 kingdom.--But if,
as he supposes 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 pounds fifteen shillings in the
merchant's service, you take from him fifty shillings a month; and if
you have a 100,000 in your service, you rob this honest industrious
part of society and their poor families of 250,000_l._ 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 did not pay with their persons; but when
you force that, methinks you should excuse the other.
But it may be said, to give the king's seamen merchant's wages would
cost the nation too much, and call for more taxes. 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
"_legal_." 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 produce the same good effects,
_the public security_, without doing so much intolerable injustice
as attends the impressing common seamen.--In order to be better
understood I would premise two things: first, that voluntary seamen
may be had for the service, if they were sufficiently paid. The proof
is, that to serve in the same ship, and incur the same dangers,
you have no occasion to impress captains, lieutenants, second
lieutenants, midshipmen, pursers, nor many other officers. Why, but
that the profits of their places, or the emoluments expected, are
sufficient inducements? 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 burthen 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 a month,
with their shares of mess provisions, and throw the rest of their
salaries into the seamen'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 "_ought 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_l._ a year
salary, up to 50,000_l._ 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 ****
FOOTNOTE:
[92] These notes are taken from the periodical publication mentioned
in p. 424 of the present Vol. _Editor._
TO BENJAMIN VAUGHAN, ESQ[93].
_On the criminal Laws, and the Practice of Privateering._
_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, Observations concernant l'Exécution de l'Article
II, de la Déclaration 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 délit contre la societé, 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 expence 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 an 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, 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 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 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, 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
three-pence, 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._
"_L'orsque 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 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 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, 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 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, 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_ 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, and which took a number of French prizes. The booty being
shared, he has now an agent here enquiring, 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.