speculation among the writers upon general law; viz., whether a man in
extreme want of food or clothing may justify stealing either, to relieve
his present necessities. And this both GROTIUS and PUFFENDORF, together
with _many other_ of the foreign jurists, hold in the affirmative;
maintaining by many ingenious, humane, and plausible reasons, that in such
cases the community of goods by a kind of tacit concession of society is
revived. And some even of our own lawyers have held the same; though it
seems to be an unwarranted doctrine, borrowed from the notions of some
civilians: at least it is now antiquated, the law of England admitting no
such excuse at present. And this its doctrine is agreeable not only to the
sentiments of many of the wisest ancients, particularly CICERO, who holds
that 'suum cuique incommodum ferendum est, potius quam de alterius
commodis detrahendum;' but also to the Jewish law, as certified by King
Solomon himself: '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:' which was the ordinary punishment for theft in that kingdom. And
this is founded upon the highest reason: for men's properties would be
under a strange insecurity, if liable to be invaded according to the
wants of others; of which wants no man can possibly be an adequate judge,
but the party himself who pleads them. In this country especially, there
would be a peculiar impropriety in admitting so dubious an excuse; for by
our laws such a sufficient provision is made for the poor by the power of
the civil magistrate, that it is impossible that the most needy stranger
should ever be reduced to the necessity of thieving to support nature.
This case of a stranger is, by the way, the strongest instance put by
Baron PUFFENDORF, and whereon he builds his principal arguments; which,
however they may hold upon the continent, where the parsimonious industry
of the natives orders every one to work or starve, yet must lose all their
weight and efficacy in England, where _charity is reduced to a system, and
interwoven in our very constitution_. Therefore, our laws ought by no
means to be taxed with being _unmerciful_, for denying this privilege to
the necessitous; especially when we consider, that the king, on the
representation of his ministers of justice, hath a power to soften the
law, and to extend mercy in cases of peculiar hardship. An advantage which
is wanting in many states, particularly those which are democratical: and
these have in its stead introduced and adopted, in the body of the law
itself, a multitude of circumstances tending to alleviate its rigour. But
the founders of our constitution thought it better to vest in the crown
the power of pardoning peculiar objects of compassion, than to countenance
and establish theft by one general undistinguishing law."
36. First of all, I beg you to observe, that this passage is merely _a
flagrant act of theft_, committed upon JUDGE HALE; next, you perceive,
that which I noticed in paragraph 28, a most base and impudent garbling of
the Scriptures. Next, you see, that BLACKSTONE, like HALE, comes, at last,
to the _poor-laws_; and tells us that to take other men's goods without
leave, is theft, _because_ "charity is here reduced to a system, and
interwoven in our very constitution." That is to say, to relieve the
necessitous; to prevent their suffering from want; completely to render
starvation impossible, makes a part of our very constitution. "THEREFORE,
our laws ought by no means to be taxed with being _unmerciful_ for denying
this privilege to the necessitous." Pray mark the word _therefore_. You
see, our laws, he says, are not to be taxed with being unmerciful in
deeming the necessitous taker _a thief_. And _why_ are they not to be
deemed unmerciful? BECAUSE the laws provide effectual relief for the
necessitous. It follows, then, of course, even according to BLACKSTONE
himself, that if the Constitution _had not_ provided this effectual relief
for the necessitous, then the laws _would have been unmerciful_ in deeming
the necessitous taker a thief.
37. But now let us hear what that GROTIUS and that PUFFENDORF say; let us
hear what these great writers on the law of nature and of nations say upon
this subject. BLACKSTONE has mentioned the names of them both; but he has
not thought proper to notice their arguments, much less has he attempted
to answer them. They are two of the most celebrated men that ever wrote;
and their writings are referred to as high authority, with regard to all
the subjects of which they have treated. The following is a passage from
GROTIUS, on War and Peace, Book II., chap. 2.
38. "Let us see, further, what common right there appertains to men in
those things which have already become the property of individuals. Some
persons, perchance, may consider it strange to question this, as
proprietorship seems to have absorbed all that right which arose out of a
state of things in common. But it is not so. For, it is to be considered,
_what was the intention of those who first introduced private property_,
which we may suppose to have been such, as to deviate as little as
possible from _natural equity_. For if even _written laws_ are to be
construed in that sense, as far as it is practicable, much more so are
_customs_, which are not fettered by the chains of writers.--Hence it
follows, first, that, in case of _extreme necessity_, the _pristine right
of using things revives_, as much as if they had remained in common;
because, in all human laws, as well as in the law of private property,
_this case of extreme necessity appears to have been excepted_.--So, if
the means of sustenance, as in case of a sea-voyage, should chance to
fail, that which any individual may have, should be shared in common. And
thus, a fire having broken out, I am justified in destroying the house of
my neighbour, in order to preserve my own house; and I may cut in two the
ropes or cords amongst which any ship is driven, if it cannot be otherwise
disentangled. All which exceptions are not made in the written law, but
are presumed.--For the opinion has been acknowledged amongst Divines,
that, if any one, in such case of necessity, take from another person what
is requisite for the preservation of his life, _he does not commit a
theft_. The meaning of which definition is not, as many contend, that the
proprietor of the thing be bound to give to the needy upon the principle
of _charity_; but, that all things distinctly vested in proprietors ought
to be regarded as such _with a certain benign acknowledgment of the
primitive right_. For if the original distributors of things were
questioned, as to what they thought about this matter, they would reply
what I have said. _Necessity_, says Father SENECA, _the great excuse for
human weakness, breaks every law_; that is to say, _human law_, or law
made after the manner of man."
39. "But cautions ought to be had, for fear this license should be abused:
of which the principal is, to try, in every way, whether the necessity can
be avoided by any other means; for instance, by making application to the
magistrate, or even by trying whether the use of the thing can, by
entreaties, be obtained from the proprietor. PLATO permits water to be
fetched from the well of a neighbour upon this condition alone, that the
person asking for such permission shall dig in his own well in search of
water as far as the chalk: and SOLON, that he shall dig in his own well
as far as forty cubits. Upon which PLUTARCH adds, _that he judged that
necessity was to be relieved, not laziness to be encouraged_."
40. Such is the doctrine of this celebrated civilian. Let us now hear
PUFFENDORF; and you will please to bear in mind, that both these writers
are of the greatest authority upon all subjects connected with the laws of
nature and of nations. We read in their works the result of an age of
study: they have been two of the great guides of mankind ever since they
wrote: and, we are not to throw them aside, in order to listen exclusively
to Parson HAY, to HULTON OF HULTON, or to NICHOLAS GRIMSHAW. They tell us
what they, and what other wise men, deemed to be right; and, as we shall
by and by see, the laws of England, so justly boasted of by our ancestors,
hold precisely the same language with these celebrated men. After the
following passage from PUFFENDORF, I shall show you what our own lawyers
say upon the subject; but I request you to read the following passage with
the greatest attention.
41. "Let us inquire, in the next place, whether the necessity of
preserving our life can give us any right over other men's goods, so as to
make it allowable for us to seize on them for our relief, either secretly,
or by open force, against the owner's consent. For the more clear and
solid determination of which point, we think it necessary to hint in short
on the causes upon which distinct _properties_ were first introduced in
the world; designing to examine them more at large in their proper place.
Now the main reasons on which _properties_ are founded, we take to be
these two; that the feuds and quarrels might be appeased which arose in
the _primitive communion_ of things, and that men might be put under a
kind of necessity of being industrious, every one being to get his
maintenance by his own application and labour. This division, therefore,
of goods, was not made, that every person should sit idly brooding over
the share of wealth he had got, without assisting or serving his fellows;
but that any one might dispose of his things how he pleased; and if he
thought fit to communicate them to others, he might, at least, be thus
furnished with an opportunity of laying obligations on the rest of
mankind. Hence, when properties were once established, men obtained a
power, not only of exercising commerce to their mutual advantage and gain,
but likewise of dispensing more largely in the works of humanity and
beneficence; whence their diligence had procured them a greater share of
goods than others: whereas before, when all things lay in common, men
could lend one another no assistance but what was supplied by their
corporeal ability, and could be charitable of nothing but of their
_strength_. Further, such is the force of _property_, that the
_proprietor_ hath a right of delivering his goods with his own hands; even
such as he is obliged to give to others. Whence it follows, that when one
man has anything owing from another, he is not presently to seize on it at
a venture, but ought to apply himself to the owner, desiring to receive it
from his disposal. Yet in case the other party refuse thus to make good
his obligation, the power and privilege of _property_ doth not reach so
far as that the things may not be taken away without the owner's consent,
either by the authority of the magistrate in _civil communities_, or in a
_state of nature_, by violence and hostile force. And though in regard to
bare Natural Right, for a man to relieve another in extremity with his
goods, for which he himself hath not so much occasion, be a duty obliging
only _imperfectly_, and not in the manner of a _debt_, since it arises
wholly from the virtue of _humanity_; yet there seems to be no reason why,
by the additional force of a civil ordinance, it may not be turned into a
strict and perfect obligation. And this _Seldon_ observes to have been
done among the _Jews_; who, upon a man's refusing to give such alms as
were proper for him, _could force him to it by an action at law_. It is no
wonder, therefore, that they should forbid _their poor_, on any account,
to seize on the goods of others, enjoining them to take only what private
persons, or the public officers, or stewards of alms, should give them on
their petition. Whence the stealing of what was another's, though upon
extreme necessity, passed in that state for theft or rapine. But now
supposing _under another government the like good provision is not made
for persons in want_, supposing likewise that the covetous temper of men
of substance cannot be prevailed on to give relief, and that the needy
creature is not able, either by his work or service, or by making sale of
anything that he possesses, to assist his present necessity, _must_ he,
_therefore, perish with famine_? Or _can any human institution bind me_
with such a force that, in case another man neglects his duty towards me,
_I must rather die, than recede a little from the ordinary and regular way
of acting_? We conceive, therefore, that such a person doth _not contract
the guilt of theft_, who happening, not through his own fault, to be in
extreme want, either of necessary food, or of clothes to preserve him from
the violence of the weather, and cannot obtain them from the voluntary
gift of the rich, either by urgent entreaties, or by offering somewhat
equivalent in price, or by engaging _to work it out, shall either forcibly
or privily relieve himself out of their abundance_; especially if he do it
with full intention to pay the value of them whenever his better fortune
gives him ability. Some men deny that such a case of _necessity_, as we
speak of, can possibly happen. But what if a man should wander in a
foreign land, unknown, friendless, and in want, spoiled of all he had by
shipwreck, or by robbers, or having lost by some casualty whatever he was
worth in his own country; should none be found willing either to relieve
his distress, or to hire his service, or should they rather (as it
commonly happens,) seeing him in a good garb, suspect him to beg without
reason, must the poor creature starve in this miserable condition?"
42. Many other great foreign authorities might be referred to, and I
cannot help mentioning COVARRUVIUS, who is spoken of by JUDGE HALE, and
who expresses himself upon the subject in these words: "The reason why a
man in extreme necessity may, _without incurring the guilt of theft or
rapine_, forcibly take the goods of others for his present relief, is
because his condition _renders all things common_. For it is the ordinance
and institution of nature itself, that inferior things should be designed
and directed to serve the necessities of men. Wherefore the division of
goods afterwards introduced into the world doth not derogate from that
precept of natural reason, which Suggests, that the _extreme wants of
mankind may be in any manner removed by the use of temporal possessions_."
PUFFENDORF tells us, that PERESIUS maintains, that, in case of extreme
necessity, a man is compelled to the action, by a force which he cannot
resist; and then, that the owner's consent may be presumed on, because
humanity obliges him to succour those who are in distress. The same writer
cites a passage from St. AMBROSE, one of the FATHERS of the church, which
alleges that (in case of refusing to give to persons in extreme necessity)
it is the person who retains the goods who is guilty of the act of wrong
doing, for St. AMBROSE says; "it is the _bread of the hungry_ which you
detain; it is the _raiment of the naked_ which you lock up."
43. Before I come to the English authorities on the same side, let me
again notice the foul dealing of Blackstone; let me point out another
instance or two of the insincerity of this English court-sycophant, who
was, let it be noted, Solicitor-general to the queen of the "good old
King." You have seen, in paragraph 28, a most flagrant instance of his
perversion of the Scriptures. He garbles the word of God, and prefaces the
garbling by calling it a thing "_certified_ by King Solomon himself;" and
this word _certified_ he makes use of just when he is about to begin the
scandalous falsification of the text which he is referring to. Never was
anything more base. But, the whole extent of the baseness we have not yet
seen; for, BLACKSTONE had read HALE, who had quoted the two verses fairly;
but besides this, he had read PUFFENDORF, who had noticed very fully this
text of Scripture, and who had shown very clearly that it did not at all
make in favour of the doctrine of Blackstone. Blackstone ought to have
given the argument of PUFFENDORF; he ought to have given the whole of his
argument; but particularly he ought to have given this explanation of the
passage in the PROVERBS, which explanation I have inserted in paragraph
27. It was also the height of insincerity in BLACKSTONE, to pretend that
the passage from CICERO had anything at all to do with the matter. He knew
well that it had not; he knew that CICERO contemplated no case of extreme
necessity for want of food or clothing; but, he had read PUFFENDORF, and
PUFFENDORF had told him, that CICERO'S was a question of the mere
_conveniences_ and _inconveniences_ of life in general; and not a question
of pinching hunger or shivering nakedness. BLACKSTONE had seen his fallacy
exposed by PUFFENDORF; he had seen the misapplication of this passage of
CICERO fully exposed by PUFFENDORF; and yet the base court-sycophant
trumped it up again, without mentioning PUFFENDORF'S exposure of the
fallacy! In short this BLACKSTONE, upon this occasion, as upon almost all
others, has gone all lengths; has set detection and reproof at defiance,
for the sake of making his court to the government by inculcating
harshness in the application of the law, and by giving to the law such an
interpretation as would naturally tend to justify that harshness.
44. Let us now cast away from us this insincere sycophant, and turn to
other law authorities of our own country. The _Mirrour of Justices_,
(quoted by me in paragraph 14,) Chap. 4, Section 16, on the subject of
arrest of judgment of death, has this passage. Judgment is to be staid in
seven cases here specified: and the seventh is this: "in POVERTY, in which
case you are to distinguish of the poverty of the offender, or of things;
for if poor people, _to avoid famine, take victuals to sustain their
lives, or clothes that they die not of cold_, (so that they perish if they
keep not themselves from cold,) _they are not to be adjudged to death, if
it were not in their power to have bought their victuals or clothes_; for
as much as _they are warranted so to do by the law of nature_." Now, my
friends, you will observe, that I take this from a book which may almost
be called the BIBLE of the law. There is no lawyer who will deny the
goodness of this authority; or who will attempt to say that this was not
always the law of England.
45. Our next authority is one quite as authentic, and almost as ancient.
The book goes by the name of BRITTON, which was the name of a Bishop of
Hereford, who edited it, in the famous reign of EDWARD THE FIRST. The book
does, in fact, contain the laws of the kingdom as they existed at that
time. It may be called the record of the laws of Edward the First. It
begins thus, "Edward by the grace of God, King of England and Lord of
Ireland, to all his liege subjects, peace, and grace of salvation." The
preamble goes on to state, that people cannot be happy without good laws;
that even good laws are of no use unless they be known and understood; and
that, therefore, the king has ordered the laws of England thus to be
written and recorded. This book is very well known to be of the greatest
authority, amongst lawyers, and in Chap. 10 of this book, in which the law
describes what constitutes a BURGLAR, or house-breaker, and the punishment
that he shall suffer (which is that of death,) there is this passage:
"Those are to be deemed burglars who feloniously, in time of peace, break
into churches or houses, or through walls or doors of our cities, or our
boroughs; with _exception_ of children under age, and of _poor people who
for hunger, enter to take any sort of victuals of less value than twelve
pence_; and except idiots and mad people, and others that cannot commit
felony." Thus, you see, this agrees with the MIRROUR OF JUSTICES, and with
all that we have read before from these numerous high authorities. But
this, taken in its full latitude, goes a great length indeed; for a
burglar is a _breaker-in by night_. So that this is not only _a taking_;
but a breaking into a house in order to take! And observe, it is taking to
the value of _twelve pence_; and twelve pence then was the price of _a
couple of sheep_, and of fine fat sheep too; nay, twelve pence was the
price of _an ox_, in this very reign of Edward the First. So that, a
hungry man might have a pretty good belly-full in those days without
running the risk of punishment. Observe, by-the-by, how time has hardened
the law. We are told of the _dark ages_, of the _barbarous customs_, of
our forefathers: and we have a SIR JAMES MACKINTOSH to receive and to
present petitions innumerable, from the most tender hearted creatures in
the world, about "_softening the criminal code_;" but, not a word do they
ever say about a softening of _this law_, which now hangs a man for
stealing the value of a RABBIT, and which formerly did not hang him till
he stole the value of an OX! Curious enough, but still more scandalous,
that we should have the impudence to talk of our _humanity_, and our
_civilization_, and of the barbarousness of our forefathers. But, if a
_part_ of the ancient law remain, shall not the _whole_ of it remain? If
we hang the thief, still hang the thief for stealing to the value of
_twelve pence_; though the twelve pence now represents a rabbit instead of
an ox; if we still do this, would BLACKSTONE take away the benefit of the
ancient law from the starving man? The passage that I have quoted is of
such great importance as to this question, that I think it necessary to
add, here, a copy of the original, which is in the old _Norman-French_, of
which I give the translation above. "Sunt tenus burgessours trestous ceux,
que felonisement en temps de pees debrusent esglises ou auter mesons, ou
murs, ou portes de nos cytes, ou de nos burghes; hors pris enfauntz dedans
age, et poures, que, pur feyn, entret pur ascun vitaille de meindre value
q'de xii deners, et hors pris fous nastres, et gens arrages, et autres que
seuent nule felonie faire."
46. After this, _lawyers_, at any rate, will not attempt to gainsay. If
there should, however, remain any one to affect to doubt of the soundness
of this doctrine, let them take the following from him who is always
called the "_pride of philosophy_," the "_pride of English learning_," and
whom the poet POPE calls "_greatest_ and _wisest_ of mankind." It is LORD
BACON of whom I am speaking. He was Lord High Chancellor in the reign of
James the First; and, let it be observed, that he wrote those "_law
tracts_," from which I am about to quote, long after the present poor-laws
had been established. He says (Law Tracts, page 55,) "The law chargeth no
man with default where the act is compulsory and not voluntary, and where
there is not consent and election; and, therefore, if either there be an
impossibility for a man to do otherwise, or so great a perturbation of the
judgment and reason, as in presumption of law a man's nature cannot
overcome, such necessity carrieth a privilege in itself.--Necessity is of
three sorts: necessity of conservation of life; necessity of obedience;
and necessity of the act of God or of a stranger.--First, of conservation
of life; _if a man steal viands (victuals) to satisfy his present hunger_,
this is _no felony_ nor _larceny_."
47. If any man want more authority, his heart must be hard indeed; he must
have an uncommonly anxious desire to take away by the halter the life that
sought to preserve itself against hunger. But, after all, what need had we
of any _authorities_? What need had we even of _reason_ upon the subject?
Who is there upon the face of the earth, except the monsters that come
from across the channel of St. George; who is there upon the face of the
earth, except those monsters, that have the brass, the hard hearts and the
brazen faces, which enable them coolly to talk of the "MERIT" of the
degraded creatures, who, amidst an abundance of food, amidst a
"_superabundance of food_," lie quietly down and receive the extreme
unction, and expire with hunger? Who, upon the face of the whole earth,
except these monsters, these ruffians by way of excellence; who, except
these, the most insolent and hard-hearted ruffians that ever lived, will
contend, or will dare to think, that there ought to be any force under
heaven to compel a man to lie down at the door of a baker's and butcher's
shop, and expire with hunger! The very nature of man makes him shudder at
the thought. There want no authorities; no appeal to law books; no
arguments; no questions of right or wrong: that same human nature that
tells me that I am not to cut my neighbour's throat, and drink his blood,
tells me that I am not to make him die at my feet by keeping from him food
or raiment of which I have more than I want for my own preservation.