_gift_ to the working people. You hear the greedy landowners everlastingly
complaining against this law of QUEEN ELIZABETH. They pretend that it was
_an unfortunate_ law. They affect to regard it as a great INNOVATION,
seeing that no such law existed before; but, as I have shown, a better law
existed before, having the same object in view. I have shown, that the
"Reformation," as it is called, had sweeped away that which had been
secured to the poor by the Common Law, by the Canons of the Church, and by
ancient Acts of Parliament. There was _nothing new_, then, in the way of
benevolence towards the people, in this celebrated Act of Parliament of
the reign of QUEEN ELIZABETH; and the landowners would act wisely by
holding their tongues upon the subject; or, if they be too noisy, one may
look into their GRANTS, and see if we cannot find something THERE to keep
out the present parochial assessments.
17. Having now seen _the origin_ of the present poor-laws, and the justice
of their due execution, let us return to those authorities of which I was
speaking but now, and an examination into which will show the extreme
danger of listening to those projectors who would abolish the poor-laws;
that is to say, who would sweep away that provision which was established
in the reign of QUEEN ELIZABETH, from a conviction that it was absolutely
necessary to preserve the peace of the country and the lives of the
people. I observed before that there has been some difference of opinion
amongst lawyers as to the question, whether it be, or be not, _theft_, to
take without his consent and against his will, the victuals of another, in
order to prevent the taker from starving. SIR MATTHEW HALE and SIR WILLIAM
BLACKSTONE say that it _is theft_. I am now going to quote the several
authorities on both sides, and it will be necessary for me to indicate the
works which I quote from by the words, letters, and figures which are
usually made use of in quoting from these works. Some part of what I shall
quote will be in Latin: but I shall put nothing in that language of which
I will not give you the translation. I beg you to read these quotations
with the greatest attention; for you will find, at the end of your
reading, that you have obtained great knowledge upon the subject, and
knowledge, too, which will not soon depart from your minds.
18. I begin with SIR MATTHEW HALE, (a Chief Justice of the Court of King's
Bench in the reign of Charles the Second,) who, in his PLEAS OF THE CROWN,
CHAP. IX., has the following passage, which I put in distinct paragraphs,
and mark A, B, and C.
19. A. "Some of the casuists, and particularly COVARRUVIUS, Tom. I. _De
furti et rapinae restitutione_, Sec. 3, 4, p. 473; and GROTIUS, _de jure
belli, ac pacis_; lib. II. cap. 2. Sec. 6, tell us, that in case of extreme
necessity, either of hunger or clothing, the _civil distributions of
property cease_, and by a kind of tacit condition the _first community
doth return_, and upon this those common assertions are grounded:
'_Quicquid necessitas cogit, defendit._' [Whatever necessity calls for, it
justifies.] '_Necessitas est lex temporis et loci._' [Necessity is the law
of time and place.] '_In casu extremae necessitatis omnia sunt communia._'
[In case of extreme necessity, all things are _in common_;] and,
therefore, in such case _theft is no theft_, or at least not punishable as
theft; and some even of our own lawyers have asserted the same; and very
bad use hath been made of this concession by some of the _Jesuitical_
casuists of _France_, who have thereupon advised apprentices and servants
to rob their masters, where they have been indeed themselves in want of
necessaries, of clothes or victuals; whereof, they tell them, they
themselves are the competent judges; and by this means let loose, as much
as they can, by their doctrine of probability, all the ligaments of
property and civil society."
20. B. "I do, therefore, _take it_, that, where persons live under the
same civil government, _as here in England_, that rule, at least by the
laws of _England_, is false; and, therefore, if a person being _under
necessity for want of victuals_, or clothes, shall, upon that account,
clandestinely, and '_animo furandi_,' [with intent to steal,] steal
another man's goods, it is felony, and a crime, by the laws of _England_,
punishable with death; although, the judge before whom the trial is, in
this case (as in other cases of extremity) be by the laws of _England_
intrusted with a power to reprieve the offender, before or after judgment,
in order to the obtaining the King's mercy. For, 1st, Men's properties
would be under a strange insecurity, being laid open to other men's
necessities, whereof no man can possibly judge, but the party himself.
And, 2nd, Because by the laws of this kingdom [here he refers to the 43
Eliz. cap. 2] sufficient provision is made for the supply of such
necessities by collections for the poor, and by the power of the civil
magistrate. Consonant hereunto seems to be the law even among the Jews; if
we may believe the wisest of kings. Proverbs vi. 30, 31. '_Men do not
despise a thief, if he steal to satisfy his soul when he is hungry, but if
he be found, he shall restore seven-fold, he shall give all the substance
of his house._' It is true, _death_ among them was not the penalty of
theft, yet his necessity gave him _no exception_ from the ordinary
punishment inflicted by their law upon that offence."
21. C. "Indeed this rule, '_in casu extremae necessitatis omnia sunt
communia_,' does hold, in some measure, in some particular cases, where,
by the tacit consent of nations, or of some particular countries or
societies, it hath obtained. First, among the _Jews_, it was lawful in
case of hunger to pull ears of standing corn, and eat, (Matt. xii. 1;) and
for one to pass through a vineyard, or olive-yard, to gather and eat
without carrying away. Deut. xxiii. 24, 25. SECOND, By the _Rhodian_ law,
and the common-maritime custom, if the common provision for the ship's
company fail, the master may, under certain temperaments, _break open the
private chests of the mariners or passengers_, and _make a distribution_
of that particular and private provision for the _preservation of the
ship's company_." Vide CONSOLATO DEL MARE, cap. 256. LE CUSTOMES DE LA
MERE, p. 77.
22. SIR WILLIAM BLACKSTONE agrees, in substance, with HALE; but he is, as
we shall presently see, much more eager to establish his doctrine; and, we
shall see besides, that he has not scrupled to be guilty of misquoting,
and of very shamefully _garbling_, _the Scripture_, in order to establish
his point. We shall find him flatly contradicting the laws of England;
but, he might have spared the Holy Scriptures, which, however, he has not
done.
23. To return to HALE, you see he is compelled to begin with acknowledging
that there are great authorities against him; and he could not say that
GROTIUS was not one of the most virtuous as well as one of the most
learned of mankind. HALE does not know very well what to do with those old
sayings about the justification which hard necessity gives: he does not
know what to do with the maxim, that, "in case of extreme necessity all
things _are owned in common_." He is exceedingly puzzled with these
ancient authorities, and flies off into prattle rather than argument, and
tells us a story about "_jesuitical_" casuists in France, who advised
apprentices and servants to rob their masters, and that they thus "let
loose the ligaments of property and civil society." I fancy that it would
require a pretty large portion of that sort of faith which induced this
Protestant judge to send witches and wizards to the gallows; a pretty
large portion of this sort of faith, to make us believe, that the
"_casuists_ of France," who, doubtless, _had servants of their own_, would
teach servants to rob their masters! In short, this prattle of the judge
seems to have been nothing more than one of those Protestant effusions
which were too much in fashion at the time when he wrote.
24. He begins his second paragraph, or paragraph B., by saying, that he
"_takes it_" to be so and so; and then comes another qualified expression;
he talks of civil government "_as here in England_." Then he says, that
the rule of GROTIUS and others, against which he has been contending, "he
takes _to be false_, at _least_," says he, "_by the laws of England_."
After he has made all these qualifications, he then proceeds to say that
_such taking is theft_; that it is _felony_; and it is a crime which the
laws of England punish with _death_! But, as if stricken with remorse at
putting the frightful words upon paper; as if feeling shame for the law
and for England itself, he instantly begins to tell us, that the judge who
presides at the trial is intrusted, "_by the laws of England_," with power
to _reprieve_ the offender, in order to the obtaining of the _King's
mercy_! Thus he softens it down. He will have it to be LAW to put a man to
death in such a case; but he is ashamed to leave his readers to believe,
that an English judge and an English king WOULD OBEY THIS LAW!
25. Let us now hear the reasons which he gives for this which he pretends
to be law. His first reason is, that there would be no security for
property, if it were laid open to the necessities of the indigent, of
which necessities _no man but the takers themselves could be the judge_.
He talks of a "strange insecurity;" but, upon my word, no insecurity could
be half so strange as this assertion of his own. BLACKSTONE has just the
same argument. "Nobody," says he, "would be a judge of the wants of the
taker, but the taker himself;" and BLACKSTONE, copying the very words of
HALE, talks of the "strange insecurity" arising from this cause. Now,
then, suppose a man to come into my house, and to take away a bit of
bacon. Suppose me to pursue him and seize him. He would tell me that he
was starving for want of food. I hope that the bare statement would induce
me, or any man in the world that I do call or ever have called my friend,
to let him go without further inquiry; but, if I chose to push the matter
further, there would be _the magistrate_. If he chose to commit the man,
would there not be a _jury_ and a _judge_ to receive evidence and to
ascertain _whether the extreme necessity existed or not_?
26. Aye, says Judge HALE; but I have another reason, a devilish deal
better than this, "and that is, the act of the 43d year of the reign of
QUEEN ELIZABETH!" Aye, my old boy, that is a thumping reason! "_Sufficient
provision_ is made for the supply of such necessities by _collections for
the poor_, and by the _power of the civil magistrate_." Aye, aye! that is
the reason; and, Mr. SIR MATTHEW HALE, there is _no other reason_, say
what you will about the matter. There stand the overseer and the civil
magistrate to take care that such necessities be provided for; and if they
did not stand there for that purpose, the law of nature would be revived
in behalf of the suffering creature.
27. HALE, not content however with this act of QUEEN ELIZABETH, and still
hankering after this hard doctrine, furbishes up a bit of Scripture, and
calls Solomon the _wisest of kings_ on account of these two verses which
he has taken. HALE observes, indeed, that the Jews did not put thieves to
_death_; but, to restore seven-fold was the _ordinary punishment_,
inflicted by their law, for theft; and here, says he, we see, that the
extreme necessity _gave no exemption_. This was a piece of such flagrant
sophistry on the part of HALE, that he could not find in his heart to send
it forth to the world without a qualifying observation; but even this
qualifying observation left the sophistry still so shameful, that his
editor, Mr. EMLYN, who published the work under authority of the House of
Commons, did not think it consistent with his reputation to suffer this
passage to go forth unaccompanied with the following remark: "But their
(the Jews') ordinary punishment being entirely _pecuniary_, could affect
him _only when he was found in a condition to answer it_; and therefore
the same reasons which could justify that, can, by no means, be extended
to a _corporal_, much less to a _capital_ punishment." Certainly: and this
is the fair interpretation of these two verses of the Proverbs.
PUFFENDORF, one of the greatest authorities that the world knows anything
of, observes, upon the argument built upon this text of Scripture, "It may
be objected, that, in Proverbs, chap. vi. verses 30, 31, he is called a
_thief_, and pronounced obnoxious to the penalty of theft, who steals to
satisfy his hunger; but whoever closely views and considers that text will
find that the thief there censured is neither in such _extreme necessity_
as we are now supposing, nor seems to have fallen into his needy condition
merely by ill fortune, without his own idleness or default: for the
context implies, that he had _a house and goods sufficient_ to make
seven-fold restitution; which he might have either sold or pawned; a
chapman or creditor being easily to be met with in times of plenty and
peace; for we have no grounds to think that the fact there mentioned is
supposed to be committed, either in time of war, or upon account of the
extraordinary price of provisions."
28. Besides this, I think it is clear that these two verses of the
Proverbs do not apply to _one and the same person_; for in the first verse
it is said, that men _do not despise_ a thief if he steal to satisfy his
soul when he is hungry. How, then, are we to reconcile this with
_morality_? Are we not to despise a _thief_? It is clear that the word
_thief_ does not apply to the first case; but to the second case only; and
that the distinction was here made for the express purpose of preventing
the man who took food to relieve his hunger _from being confounded with
the thief_. Upon any other interpretation, it makes the passage contain
nonsense and immorality; and, indeed, GROTIUS says that the latter text
does not apply to the person mentioned in the former. The latter text
could not mean a man taking food from necessity. It is _impossible_ that
it can mean that; because the man who was starving for want of food _could
not have_ seven-fold; _could not have_ any substance in his house. But
what are we to think of JUDGE BLACKSTONE, who, in his Book IV., chap. 2,
really _garbles_ these texts of Scripture. He clearly saw the effect of
the expression, "MEN DO NOT DESPISE;" he saw what an awkward figure these
words made, coming before the words "A THIEF;" he saw that, with these
words in the text, he could never succeed in making his readers believe
that a man ought to be _hanged_ for taking food to save his life. He
clearly saw that he could not make men believe that _God had said this_,
unless he could, somehow or other, get rid of those words about NOT
DESPISING the thief that took victuals when he was hungry. Being,
therefore, very much pestered and annoyed by these words about NOT
DESPISING, what does he do but fairly _leave them out_! And not only leave
them out, but leave out a part of both the verses, keeping in that part of
each that suited him, and no more; nay, further, leaving out one word, and
putting in another, giving a sense to the whole which he knew well never
was intended. He states the passage to be this: "If a thief steal to
satisfy his soul when he is hungry, _he_ shall restore seven-fold, _and_
shall give all the substance of his house." No broomstick that ever was
handled would have been too heavy or too rough for the shoulders of this
dirty-souled man. HALE, with all his desire to make out a case in favour
of severity, has given us the words fairly: but this shuffling fellow;
this smooth-spoken and mean wretch, who is himself _thief_ enough, God
knows, if stealing other men's thoughts and words constitute theft; this
intolerably mean reptile has, in the first place, left out the words
"_men do not despise_:" then he has left out the words at the beginning of
the next text, "_but if he be found_." Then in place of the "_he_," which
comes before the words "_shall give_" he puts the word "_and_;" and thus
he makes the whole apply to the poor creature that takes to satisfy his
soul when he is hungry! He leaves out every mitigating word of the
Scripture; and, in his reference, he represents the passage to be in _one_
verse! Perhaps, even in the history of the conduct of crown-lawyers, there
is not to be found mention of an act so coolly bloody-minded as this. It
has often been said of this BLACKSTONE, that he not only _lied_ himself,
but _made others lie_; he has here made, as far as he was able, a liar of
King Solomon himself: he has wilfully garbled the Holy Scripture; and
that, too, for the manifest purpose of justifying cruelty in courts and
judges; for the manifest purpose of justifying the most savage oppression
of the poor.
29. After all, HALE has not the courage to send forth this doctrine of
his, without allowing that the case of extreme necessity does, "in _some
measure_," and "in _particular cases_," and, "by the _tacit_ or _silent_
consent of nations," _hold good_! What a crowd of qualifications is here!
With what reluctance he confesses that which all the world knows to be
true, that the disciples of JESUS CHRIST pulled off, without leave, the
ears of standing corn, and ate them "_being an hungered_." And here are
two things to observe upon. In the first place this _corn_ was not what
_we call corn_ here in England, or else it would have been very droll sort
of stuff to crop off and eat. It was what the Americans call _Indian
corn_, what the French call _Turkish corn_; and what is called _corn_ (as
being far surpassing all other in excellence) in the Eastern countries
where the Scriptures were written. About four or five ears of this corn,
of which you strip all the husk off in a minute, are enough for a man's
breakfast or dinner; and by about the middle of August this corn is just
as wholesome and as efficient as bread. So that, this was _something_ to
take and eat without the owner's leave; it was something of value; and
observe, that the Pharisees, though so strongly disposed to find fault
with everything that was done by Jesus Christ and his disciples, did not
find fault of their _taking_ the corn to eat; did not call them _thieves_;
did not propose to punish them for _theft_; but found fault of them only
for having _plucked the corn on the Sabbath-day_! To pluck the corn was
_to do work_, and these severe critics found fault of this working on the
Sabbath-day. Then, out comes another fact, which HALE might have noticed
if he had chosen it; namely, that our Saviour reminds the Pharisees that
"DAVID and his companions, _being an hungered_, entered into the House of
God, and did eat the show-bread, to eat which was unlawful in any-body but
the priests." Thus, that which would have been _sacrilege_ under any other
circumstances; that which would have been one of the most _horrible of
crimes against the law of God_, became no crime at all when committed by a
person _pressed by hunger_.
30. Nor has JUDGE HALE fairly interpreted the two verses of DEUTERONOMY.
He represents the matter thus: that, if you be _passing through_ a
vineyard or an olive-yard you may gather and eat, without being deemed a
thief. This interpretation would make an Englishman believe that the
Scripture allowed of this taking and eating, only where there was a
_lawful foot-way_ through the vineyard. This is a very gross
misrepresentation of the matter; for if you look at the two texts, you
will find, that they say that, "when thou _comest into_;" that is to say,
when thou _enterest_ or _goest into_, "thy neighbour's vineyard, then thou
mayest eat grapes thy fill at thine own pleasure, but thou shalt not put
any in thy vessel;" that is to say, that you should not go and make wine
in his vineyard and carry it away. Then in case of the corn, precisely the
same law is laid down. You may pluck with your _hand_; but not use the
_hook_ or a _sickle_. Nothing can be plainer than this: no distinction can
be wiser, nor more just. HALE saw the force of it; and therefore, as
these texts made very strongly against him, he does not give them at full
length, but gives us a misrepresenting abbreviation.
31. He had, however, too much regard for his reputation to conclude
without acknowledging the right of seizing on the provisions of others _at
sea_. He allows that private chests may be _broken open_ to prevent men
from dying with hunger at sea. He does not stop to tell us why men's lives
are _more precious_ on sea than on land. He does not attempt to reconcile
these liberties given by the Scripture, and by the maritime laws, with his
own hard doctrine. In short, he brings us to this at last: that he will
_not acknowledge_, that it is _not theft_ to take another man's goods,
without his consent, under any circumstances; but, while he will not
acknowledge this, he plainly leaves us to conclude, that no English judge
and no English king will _ever punish_ a poor creature that takes victuals
to save himself from perishing; and he plainly leaves us to conclude, that
it is the _poor-laws_ of England; that it is their existence and _their
due execution_, which deprive everybody in England of the right to take
food and raiment in case of extreme necessity.
32. Here I agree with him most cordially; and it is because I agree with
him in this, that I deprecate the abominable projects of those who would
annihilate the poor-laws, seeing that it is those very poor-laws which
give, under all circumstances, really legal security _to property_.
Without them, cases must frequently arise, which would, according to the
law of nature, according to the law of God, and as we shall see before we
have done, according to the law of England, bring us into a state, or, at
least, bring particular persons into a state, which as far as related to
them, would cause the law of nature to _revive_, and to make _all things
to be owned in common_. To adhere, then, to these poor-laws; to cause them
to be duly executed, to prevent every encroachment upon them, to preserve
them as the apple of our eye, are the duty of every Englishman, as far as
he has capacity so to do.
33. I have, my friends, cited, as yet, authorities only _on one side_ of
this great subject, which it was my wish to discuss in this one Number. I
find that to be impossible without leaving undone much more than half my
work. I am extremely anxious to cause this matter to be well understood,
not only by the working classes, but by the owners of the land and the
magistrates. I deem it to be of the greatest possible importance; and,
while writing on it, I address myself to you, because I most sincerely
declare that I have a greater respect for you than for any other body of
persons that I know any thing of. The next Number will conclude the
discussion of the subject. The whole will lie in a very small compass.
_Sixpence_ only will be the cost of it. It will creep about, by degrees,
over the whole of this kingdom. All the authorities, all the arguments,
will be brought into this small compass; and I do flatter myself that many
months will not pass over our heads, before all but misers and madmen will
be ashamed to talk of abolishing the poor-rates and of supporting the
needy by grants and subscriptions.
I am,
Your faithful friend and
Most obedient servant,
WM. COBBETT.
NUMBER II.
_Bollitree Castle, Herefordshire, 22d Sept. 1826._
MY EXCELLENT FRIENDS,
34. In the last Number, paragraph 33, I told you, that I would, in the
present Number, conclude the discussion of the great question of _theft,
or no theft_, in a case of taking another's goods without his consent, or
against his will, the taker being pressed by extreme necessity. I laid
before you; in the last Number, JUDGE HALE'S doctrine upon the subject;
and I there mentioned the foul conduct of BLACKSTONE, the author of the
"Commentaries on the Laws of England." I will not treat this unprincipled
lawyer, this shocking court sycophant; I will not treat him as he has
treated King Solomon and the Holy Scriptures; I will not garble, misquote,
and belie him, as he garbled, misquoted, and belied them; I will give the
whole of the passage to which I allude, and which my readers may find in
the Fourth Book of his Commentaries. I request you to read it with great
attention; and to compare it, very carefully, with the passage that I have
quoted from SIR MATTHEW HALE, which you will find in paragraphs from 19 to
21 inclusive. The passage from BLACKSTONE is as follows: