Part 16

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: