Part 32

I would not however be supposed to allow in what I have just said, that cheating the king is a less offence against honesty, than cheating the public. The king and the public in this case are different names for the same thing; but if we consider the king distinctly it will not lessen the crime: it is no justification of a robbery, that the person robbed was rich and able to bear it. The king has as much right to justice as the meanest of his subjects; and as he is truly the common _father_ of his people, those that rob him fall under the scripture woe, pronounced against the son _that robbeth his father, and saith it is no sin_.

Mean as this practice is, do we not daily see people of character and fortune engaged in it for trifling advantages to themselves?--Is any lady ashamed to request of a gentleman of her acquaintance, that when he returns from abroad, he would smuggle her home a piece of silk or lace from France or Flanders? Is any gentleman ashamed to undertake and execute the commission?--Not in the least. They will talk of it freely, even before others whose pockets they are thus contriving to pick by this piece of knavery.

Among other branches of the revenue, that of the post-office is, by a late law, appropriated to the discharge of our public debt, to defray the expences of the state. None but members of parliament, and a few public officers have now a right to avoid, by a frank, the payment of postage. When any letter, not written by them or on their business, is franked by any of them, it is a hurt to the revenue, an injury which they must now take the pains to conceal by writing the whole superscription themselves. And yet such is our insensibility to justice in this particular, that nothing is more common than to see, even in a reputable company, a _very honest_ gentleman or lady declare his or her intention to cheat the nation of three-pence by a frank, and without blushing apply to one of the very legislators themselves, with a modest request, that he would be pleased to become an accomplice in the crime, and assist in the perpetration.

There are those who by these practices take a great deal in a year out of the public purse, and put the money into their own private pockets. If, passing through a room where public treasure is deposited, a man takes the opportunity of clandestinely pocketing and carrying off a guinea, is he not truly and properly a thief? And if another evades paying into the treasury a guinea he ought to pay in, and applies it to his own use, when he knows it belongs to the public as much as that which has been paid in, what difference is there in the nature of the crime, or the baseness of committing it?

Some laws make the receiving of stolen goods equally penal with stealing, and upon this principle, that if there were no receivers there would be few thieves. Our proverb too says truly, that _the receiver is as bad as the thief_. By the same reasoning, as there would be few smugglers, if there were none who knowingly encouraged them by buying their goods, we may say, that the encouragers of smuggling are as bad as the smugglers; and that, as smugglers are a kind of thieves, both equally deserve the punishments of thievery.

In this view of wronging the revenue, what must we think of those who can evade paying for their wheels and their plate, in defiance of law and justice, and yet declaim against corruption and peculation, as if their own hands and hearts were pure and unsullied? The Americans offend us grievously, when, contrary to our laws, they smuggle goods into their own country: and yet they had no hand in making those laws. I do not however pretend from thence to justify them. But I think the offence much greater in those who either directly or indirectly have been concerned in making the very laws they break. And when I hear them exclaiming against the Americans, and for every little infringement of the acts of trade, or obstruction given by a petty mob to an officer of our customs in that country, calling for vengeance against the whole people as REBELS and traitors, I cannot help thinking there are still those in the world who can _see a mote in their brother's eye, while they do not discern a beam in their own_; and that the old saying is as true now as ever it was, _one man may better steal a horse, than another look over the hedge_.

F. B.

FOOTNOTE:

[90] This letter is extracted from the London Chronicle, for November 24, 1767, and is addressed to the printer of that newspaper. B. V.

_Observations on War[91]._

By the original law of nations, war and extirpation were the punishment of injury. Humanizing by degrees, it admitted slavery instead of death: a farther step was the exchange of prisoners instead of slavery: another, to respect more the property of private persons under conquest, and be content with acquired dominion. Why should not this law of nations go on improving? Ages have intervened between its several steps: but as knowledge of late increases rapidly, why should not those steps be quickened? Why should it not be agreed to, as the future law of nations, that in any war hereafter the following description of men should be undisturbed, have the protection of both sides, and be permitted to follow their employments in security? viz.

1. Cultivators of the earth, because they labour for the subsistence of mankind.

2. Fishermen, for the same reason.

3. Merchants and traders in unarmed ships, who accommodate different nations by communicating and exchanging the necessaries and conveniences of life.

4. Artists and mechanics, inhabiting and working in open towns.

It is hardly necessary to add, that the hospitals of enemies should be unmolested--they ought to be assisted. It is for the interest of humanity in general, that the occasions of war, and the inducements to it, should be diminished. If rapine be abolished, one of the encouragements to war is taken away; and peace therefore more likely to continue and be lasting.

The practice of robbing merchants on the high seas--a remnant of the antient piracy--though it may be accidentally beneficial to particular persons, is far from being profitable to all engaged in it, or to the nation that authorises it. In the beginning of a war, some rich ships are surprized and taken. This encourages the first adventurers to fit out more armed vessels, and many others to do the same. But the enemy at the same time become more careful, arm their merchant ships better, and render them not so easy to be taken: they go also more under the protection of convoys. Thus, while the privateers to take them are multiplied, the vessels subject to be taken, and the chances of profit, are diminished; so that many cruises are made wherein the expences overgo the gains, and, as is the case in other lotteries, though particulars have got prizes, the mass of adventurers are losers, the whole expence of fitting out all the privateers during a war being much greater than the whole amount of goods taken.

Then there is the national loss of all the labour of so many men during the time they have been employed in robbing, who besides spend what they get in riot, drunkenness, and debauchery, lose their habits of industry, are rarely fit for any sober business after a peace, and serve only to increase the number of highwaymen and housebreakers. Even the undertakers, who have been fortunate, are by sudden wealth led into expensive living, the habit of which continues when the means of supporting it cease, and finally ruins them: a just punishment for their having wantonly and unfeelingly ruined many honest, innocent traders and their families, whose substance was employed in serving the common interest of mankind.

FOOTNOTE:

[91] From the American Museum, Vol. VII. p. 101. _Editor._

_Notes copied from Dr. Franklin's writing in pencil in the margin of Judge Foster's celebrated argument in favour of the Impressing of Seamen (published in the folio edition of his works)[92]._

Judge Foster, p. 158. "Every man."--The conclusion here, from the _whole to a part_, does not seem to be good logic. If the alphabet should say, Let us all fight for the defence of the whole, that is equal, and may therefore be just. But if they should say, Let A B C and D go out and fight for us, while we stay at home and sleep in whole skins, that is not equal, and therefore cannot be just.

_Ib._ "Employ."--If you please. The word signifies engaging a man to work for me, by offering him such wages as are sufficient to induce him to prefer my service. This is very different from compelling him to work on such terms as I think proper.

_Ib._ "This service and employment, &c."--These are false facts. His employments and service are not the same.--Under the merchant he goes in an unarmed vessel, not obliged to fight, but to transport merchandise. In the king's service he is obliged to fight, and to hazard all the dangers of battle. Sickness on board of king's ships is also more common and more mortal. The merchant's service too he can quit at the end of the voyage, not the king's. Also, the merchant's wages are much higher.

_Ib._ "I am very sensible, &c."--Here are two things put in comparison that are not comparable: viz. injury to seamen, and inconvenience to trade. Inconvenience to the whole trade of a nation will not justify injustice to a single seaman. If the trade would suffer without his service, it is able and ought to be willing to offer him such wages, as may induce him to afford his service voluntarily.

Page 159. "Private mischief must be borne with patience, for preventing a national calamity."--Where is this maxim in law and good policy to be found? And how can that be a maxim, which is not consistent with common sense? If the maxim had been, that private mischiefs, which prevent a national calamity, ought to be generously compensated by the nation, one might understand it: but that such private mischiefs are only to be borne with patience, is absurd!

_Ib._ "The expedient, &c. And, &c." (Paragraphs 2 and 3).--Twenty ineffectual or inconvenient schemes will not justify one that is unjust.

_Ib._ "Upon the foot of, &c."--Your reasoning, indeed, like a lie, stands but upon one _foot_, truth upon two.

Page 160. "Full wages."--Probably the same they had in the merchant's service.

Page 174. "I hardly admit, &c." (Paragraph 5).--When this author speaks of impressing, page 158, he diminishes the horror of the practice as much as possible, by presenting to the mind one sailor only suffering a "_hardship_" (as he tenderly calls it) in some "_particular cases_" only, and he places against this private mischief the inconvenience to the trade of the kingdom.--But if, as he supposes is often the case, the sailor who is pressed, and obliged to serve for the defence of trade, at the rate of twenty-five shillings a month, could get three pounds fifteen shillings in the merchant's service, you take from him fifty shillings a month; and if you have a 100,000 in your service, you rob this honest industrious part of society and their poor families of 250,000_l._ per month, or three millions a year, and at the same time oblige them to hazard their lives in fighting for the defence of your trade, to the defence of which all ought indeed to contribute (and sailors among the rest) in proportion to their profits by it: but this three millions is more than their share, if they did not pay with their persons; but when you force that, methinks you should excuse the other.

But it may be said, to give the king's seamen merchant's wages would cost the nation too much, and call for more taxes. The question then will amount to this: whether it be just in a community, that the richer part should compel the poorer to fight in defence of them and their properties, for such wages as they think fit to allow, and punish them if they refuse? Our author tells us that it is "_legal_." I have not law enough to dispute his authorities, but I cannot persuade myself that it is equitable. I will, however, own for the present, that it may be lawful when necessary; but then I contend, that it may be used so as to produce the same good effects, _the public security_, without doing so much intolerable injustice as attends the impressing common seamen.--In order to be better understood I would premise two things: first, that voluntary seamen may be had for the service, if they were sufficiently paid. The proof is, that to serve in the same ship, and incur the same dangers, you have no occasion to impress captains, lieutenants, second lieutenants, midshipmen, pursers, nor many other officers. Why, but that the profits of their places, or the emoluments expected, are sufficient inducements? The business then is, to find money, by impressing, sufficient to make the sailors all volunteers, as well as their officers, and this without any fresh burthen upon trade.--The second of my premises is, that twenty-five shillings a month, with his share of the salt beef, pork, and peas-pudding, being found sufficient for the subsistence of a hard-working seaman, it will certainly be so for a sedentary scholar or gentleman. I would then propose to form a treasury, out of which encouragements to seamen should be paid. To fill this treasury, I would impress a number of civil officers, who at present have great salaries, oblige them to serve in their respective offices for twenty-five shillings a month, with their shares of mess provisions, and throw the rest of their salaries into the seamen's treasury. If such a press-warrant were given me to execute, the first I would press should be a recorder of Bristol, or a Mr. Justice Foster, because I might have need of his edifying example, to show how much impressing ought to be borne with; for he would certainly find, that though to be reduced to twenty-five shillings a month might be a "_private mischief_," yet that, agreeably to his maxim of law and good policy, it "_ought to be borne with patience_," for preventing a national calamity. Then I would press the rest of the judges; and, opening the red book, I would press every civil officer of government from 50_l._ a year salary, up to 50,000_l._ which would throw an immense sum into our treasury: and these gentlemen could not complain, since they would receive twenty-five shillings a month, and their rations; and this without being obliged to fight. Lastly, I think I would impress ****

FOOTNOTE:

[92] These notes are taken from the periodical publication mentioned in p. 424 of the present Vol. _Editor._

TO BENJAMIN VAUGHAN, ESQ[93].

_On the criminal Laws, and the Practice of Privateering._

_March 14, 1785._

MY DEAR FRIEND,

Among the pamphlets you lately sent me, was one, entitled, Thoughts on Executive Justice. In return for that, I send you a French one on the same subject, Observations concernant l'Exécution de l'Article II, de la Déclaration sur le Vol. They are both addressed to the judges, but written, as you will see, in a very different spirit. The English author is for hanging _all_ thieves. The Frenchman is for proportioning punishments to offences.

If we really believe, as we profess to believe, that the law of Moses was the law of God, the dictate of divine wisdom, infinitely superior to human; on what principles do we ordain death as the punishment of an offence, which, according to that law, was only to be punished by a restitution of fourfold? To put a man to death for an offence, which does not deserve death, is it not a murder? And, as the French writer says, _Doit on punir un délit contre la societé, par un crime contre la nature?_

Superfluous property is the creature of society. Simple and mild laws were sufficient to guard the property that was merely necessary. The savage's bow, his hatchet, and his coat of skins, were sufficiently secured, without law, by the fear of personal resentment and retaliation. When, by virtue of the first laws, part of the society accumulated wealth and grew powerful, they enacted others more severe, and would protect their property at the expence of humanity. This was abusing their power, and commencing a tyranny. If a savage, before he entered into society, had been told,--"Your neighbour, by this means, may become owner of an hundred deer; but if your brother, or your son, or yourself, having no deer of your own, and being hungry, should kill one, an infamous death must be the consequence:" he would probably have preferred his liberty, and his common right of killing any deer, to all the advantages of society that might be proposed to him.

That it is better a hundred guilty persons should escape, than that one innocent person should suffer, is a maxim that has been long and generally approved; never, that I know of, controverted. Even the sanguinary author of the Thoughts agrees to it, adding well, "that the very thought of _injured_ innocence, and much more that of _suffering_ innocence, must awaken all our tenderest and most compassionate feelings, and at the same time raise our highest indignation against the instruments of it." "But," he adds, "there is no danger of _either_, from a strict adherence to the laws."--Really! Is it then impossible to make an unjust law? and if the law itself be unjust, may it not be the very "instrument" which ought "to raise the author's, and every body's highest indignation?" I see, in the last newspapers from London, that a woman is capitally convicted at the Old Bailey, for privately stealing out of a shop some gauze, value fourteen shillings and three-pence: is there any proportion between the injury done by a theft, value fourteen shillings and three-pence, and the punishment of a human creature, by death, on a gibbet? Might not that woman, by her labour, have made the reparation ordained by God, in paying fourfold? Is not all punishment, inflicted beyond the merit of the offence, so much punishment of innocence? In this light, how vast is the annual quantity, of not only _injured_ but _suffering_ innocence, in almost all the civilized states of Europe!

But it seems to have been thought, that this kind of innocence may be punished by way of _preventing_ crimes. I have read, indeed, of a cruel Turk in Barbary, who, whenever he bought a new Christian slave, ordered him immediately to be hung up by the legs, and to receive a hundred blows of a cudgel on the soles of his feet, that the severe sense of the punishment, and fear of incurring it thereafter, might prevent the faults, that should merit it. Our author himself would hardly approve entirely of this Turk's conduct in the government of slaves; and yet he appears to recommend something like it for the government of English subjects, when he applauds the reply of judge Burnet to the convict horse-stealer; who, being asked what he had to say why judgment of death should not pass against him, and answering, that it was hard to hang a man for _only_ stealing a horse, was told by the judge, "Man, thou art not to be hanged _only_ for stealing a horse, but that horses may not be stolen." The man's answer, if candidly examined, will, I imagine, appear reasonable, as being founded on the eternal principle of justice and equity, that punishments should be proportioned to offences; and the judge's reply brutal and unreasonable, though the writer "wishes all judges to carry it with them whenever they go the circuit, and to bear it in their minds, as containing a wise reason for all the penal statutes, which they are called upon to put in execution. "It at once illustrates," says he, "the true grounds and reasons of all capital punishments whatsoever, namely, that every man's property, as well as his life, may be held sacred and inviolate." Is there then no difference in value between property and life? If I think it right, that the crime of murder should be punished with death, not only as an equal punishment of the crime, but to prevent other murders, does it follow, that I must approve of inflicting the same punishment for a little invasion on my property by theft? If I am not myself so barbarous, so bloody-minded, and revengeful, as to kill a fellow-creature for stealing from me fourteen shillings and three-pence, how can I approve of a law that does it? Montesquieu, who was himself a judge, endeavours to impress other maxims. He must have known what humane judges feel on such occasions, and what the effects of those feelings; and, so far from thinking that severe and excessive punishments prevent crimes, he asserts, as quoted by our French writer, that

"_L'atrocité des loix en empêche l'exécution._

"_L'orsque la peine est sans mesure, on est souvent obligé de lui préférer l'impunité._

"_La cause de tous les relâchemens vient de l'impunité des crimes, et non de la modération des peines._"

It is said by those who know Europe generally, that there are more thefts committed and punished annually in England, than in all the other nations put together. If this be so, there must be a cause or causes for such depravity in our common people. May not one be the deficiency of justice and morality in our national government, manifested in our oppressive conduct to subjects, and unjust wars on our neighbours? View the long-persisted in, unjust, monopolizing treatment of Ireland, at length acknowledged! View the plundering government exercised by our merchants in the Indies; the confiscating war made upon the American colonies; and, to say nothing of those upon France and Spain, view the late war upon Holland, which was seen by impartial Europe in no other light than that of a war of rapine and pillage; the hopes of an immense and easy prey being its only apparent, and probably its true and real motive and encouragement. Justice is as strictly due between neighbour nations, as between neighbour citizens. A highwayman is as much a robber when he plunders in a gang, as when single; and a nation, that makes an unjust war, is only a great gang. After employing your people in robbing the Dutch, strange is it, that, being put out of that employ by peace, they still continue robbing, and rob one another? _Piraterie_, as the French call it, or privateering, is the universal bent of the English nation, at home and abroad, wherever settled. No less than seven hundred privateers were, it is said, commissioned in the last war! These were fitted out by merchants, to prey upon other merchants, who had never done them any injury. Is there probably any one of those privateering merchants of London, who were so ready to rob the merchants of Amsterdam, that would not as readily plunder another London merchant of the next street, if he could do it with the same impunity! The avidity, the _alieni appetens_, is the same; it is the fear alone of the gallows that makes the difference. How then can a nation, which, among the honestest of its people, has so many thieves by inclination, and whose government encouraged and commissioned no less than seven hundred gangs of robbers; how can such a nation have the face to condemn the crime in individuals, and hang up twenty of them in a morning! It naturally puts one in mind of a Newgate anecdote. One of the prisoners complained, that in the night somebody had taken his buckles out of his shoes. "What, the devil!" says another, "have we then _thieves_ amongst us? It must not be suffered. Let us search out the rogue, and pump him to death."