35. "There is yet another case of necessity, which has occasioned great

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.

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